1. The appellant, Hem Chandra Haldar was, on the complaint of Mr. H. Nicholas, Presidency Postmaster Calcutta, charged with the commission of an offense under Section 409, I. P. C, and the offence committed was specified in the manner following: That he, on or about 25th July 1933, being a Government servant employed in the General Post Office, as a postman, and in such capacity entrusted with or having dominion over property, to wit, rupees 1,165-8-0 the amount collected by him from different firms in Calcutta committed criminal breach of trust as a public servant. Upon the materials placed before the Court on behalf of the prosecution, the learned Chief Presidency Magistrate of Calcutta by whom the appellant was tried, convicted him of the offence charged, and sentenced him to rigorous imprisonment for two years, by judgment passed on 18th September 1933.
2. The entrustment of the money, the amount of Rs. 1,165-8-0 was not in question; and what had to be decided in the case was whether there was a criminal misappropriation and breach of trust. The appellant pleaded innocence, and denied misappropriation. The definite case stated by him in his written statement filed in Court, was that on the date of occurrence near the Surveyor General's Office, Calcutta, he was hailed by men in a motor car to read an address on an envelope; as he advanced to do so, he was held down in the motor car by his neck and a rope was fastened round it ; he became senseless and he did not remember anything further until his recovery at the hospital. The written statement was fild in Court on 14th September 1933, and it was in consonance with the statement of the appellant made to the police, immediately after the occurrence at the hospital, on 25th July 1933. This statement, to which detailed reference has been made by the Magistrate in his judgment, was taken by Inspector Hamid, after he went to the hospital at 5-10 p.m. on the day of occurrence.
3. The appellant having taken a substantive defence to the charge of misappropriation, it was in the circumstances of the present case, necessary to make out that defence. The prosecution was required to establish the guilt of the appellant by disproving the defence version of the case, by the production of evidence. The statement of the appellant recorded by a responsible police officer, immediately after the occurrence must be given its proper weight, and in that connection as observed by the learned Chief Presidency Magistrate, the medical evidence in the case was obviously of the utmost importance. The House Surgeon of the hospital was examined as the first witness on the side of the prosecution. According to the doctor, the accused was under police guard on admission to the hospital on 25th July. A small abrasion was found on the back of his neck on 27th July in the morning; this was shown to Col. Denham White, the superior medical officer at the hospital. A note was kept of that scar ; this note however was not produced. The pulse of the accused when he was examined by the doctor was 100. In addition to, the doctor's evidence, there is the evidence of the witness Chandan Singh, examined on the side of the prosecution, in which details were given of the appellant's movements on the day of occurrence.
4. The appellant appeared to be unconscious, when the witness saw him lying on the road; the appellant's hands and legs were twitching when he first saw him; there was a rope lying beside him, and a man in the crowd said that he had untied the rope, which was tied round the appellant's neck. We have it also from the witness Chandan Singh, that the appellant was unconscious when he was lifted into the ambulance van for the purpose of being taken to the hospital, and that the coat worn by the appellant was found by him in a torn condition when the appellant was seen lying on the road with the coat on. The witness Chandan Singh has been disbelieved by the learned Magistrate, and his evidence has been characterised as false evidence. The reason given is that the witness had been working with the accused for three years and wanted ' to help him out.' On the evidence before us, we are unable to agree with the learned Magistrate's view of the evidence of Chandan Singh, and, in our opinion, there is nothing on the record to support the learned Magistrate's opinion that the witness wanted to help the appellant. In addition to that, the medical evidence in the case, on which so much stress has been laid by the learned Magistrate, is not wholly inconsistent with the defence version of the case. As has been indicated already, the statement of the appellant to the investigating police officer, giving full details, must be given its proper weight, and that statement is supported in material particulars by the principal witness examined on the side of the prosecution, Chandan Singh, whose testimony we are unable to hold as altogether untrustworthy. The defence in the case is supported by a considerable body of evidence coming from the prosecution; and in the view of that position, it was incumbent upon the prosecution to establish, by definite and clear evidence, that the case for the defence was untrue. This the prosecution has in our judgment failed to do.
5. The case for the prosecution, in view of the statement of the appellant in support of his defence as mentioned by the learned Magistrate, was that the appellant had thought out an absurd story in advance and staged the whole scene. This case was based not on direct evidence, but on indirect or what is known in forensic procedure by the name of circumstantial evidence of a presumptive character, resting on a greater or less degree of probability. In dealing with a case of the present description therefore, depending entirely on circumstantial evidence, mere conjecture cannot be allowed to take the place of legal proof of facts, by the prosecution. At the outset one may be strongly impressed with the truth of a case as a whole, but it is obviously necessary to be on one's guard against approaching the evidence with unconscious bias. It goes without saying, and it must be taken as a proposition which has now been generally accepted, that in civil cases a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision; in criminal cases however a higher decree of assurance is demanded. The persuasion of guilt ought to amount to a moral certainty or such a moral certainty as convinces the minds of the tribunals, as reasonable men, beyond all reasonable doubt: see per Parke, B. in Rule v. Bur-dett 4B & Ald 95. It may further be noticed that in criminal cases when the appellate Court has any doubt that the conviction is a right one, whatever the original Court has done, the appellate Court should discharge the accused. It may also be taken to be a principle of universal application in cases of circumstantial evidence that in order to justify the inference of guilt, 'the incriminating facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Circumstances of strong suspicion, without more definite evidence, are not sufficient to justify a conviction, even though the accused offers no explanation of them.
6. In view of the proposition referred to above, the conviction of the appellant cannot, on the materials before us, be upheld. In the case before us, there may, at the most, be suspicions arising against the appellant out of certain improbabilities pointed out to us by the learned counsel for the Crown; but his guilt cannot be taken to be established on the inconsistencies and improbabilities only. As has been noticed already, the defence version of the case finds considerable support from the evidence placed before the Court on the side of the prosecution, and unless we are in a position to discard all the evidence that supports the case for the defence, which we are unable to do, the prosecution must be taken to have failed to bring the offence charged, home to the appellant. We are not on the whole satisfied on the materials before us, that we shall be justified to infer the guilt of the appellant from them.
7. In our judgment, there are no such inconsistencies or improbabilities, nor such incriminating facts as must be held to be incompatible with the innocence of the appellant. The evidence given on the side of the prosecution might show some inconsistencies or improbabilities, and might lead to some suspicion regarding the defence of the appellant in the case; but without more definite evidence his conviction would not be justified. This is a case in which on a reasonable view of the evidence for the prosecution, it could be said at the most that there was a doubt as to the case for the defence; and we are unable to hold on the materials before us, to which we have given our careful consideration, that the appellant has been rightly convicted.
8. The appeal is allowed. The conviction of the appellant and the sentence passed on him are set aside. The appellant now on bail is discharged from his bail bond.