1. The plaintiffs sued to recover from the defendants, the East Indian Railway Co., the price with interest of a bale of cloth, which formed part of a consignment dispatched from Howrah to the plaintiffs at Durgapur. The consignment was covered by a risk-note in form B, The Subordinate Judge decreed the suit, but on appeal taken from that decision the District Judge reversed the same and dismissed the suit. The plaintiffs have preferred this second appeal.
2. The District Judge held that the risk-note was signed by one Basudev who delivered the goods to the Railway Company for carriage, and the Railway Company absolved by reason of the risk-note.
3. It is contended on behalf of the appellants, in the first place, that it has not been legally proved that Basudev signed the risk-note. This fact was sought to be proved in this way : Basudev who is said to be alive was not called, obviously for the reason that it was either not possible for the defendants to find him out or to rely on him. D.W. 1, a freight calculator of the East Indian Railway at Howrah, who calculated the freight for the consignment, was called and he said that he attested the signature of Basudev on the risk-note, on Basudev having told him in answer to his enquiry that he had signed the note. It has been argued that this does not amount to legal proof of the fact that Basudev signed the note and reliance has been placed in this connexion on Sections 60 and 67 Evidence Act. It is said that as it was alleged that Basudev had signed the risk-note, under Section 67 it was necessary to prove that the signature on the risk-note was in Basudev's handwriting; and as the signing of the risk-note by Basudev was a fact which could be seen under Section 60, only such oral evidence of the fact could be given as was of a person who had seen Basudev signing the document. This precise contention was dealt with and overruled by Markby, J., in the case of Neelkanto Pandit v. Jaggobandhu Ghosh 12 B.L.R. App. 18. He held that Sections 60 and 67 were somewhat ambiguous, but that it was never intended by Section 67 that direct evidence of handwriting was always necessary, but the section merely stated with reference to deeds what was the universal rule in all cases, that the person who makes an allegation must prove it and lays down no new rule as to the kind of proof to be given and that it was never intended by Section 60 to exclude circumstantial evidence of a thing which could be seen, heard and felt, though at first sight the section might appear to have that meaning. If circumstantial evidence is allowable, then to prove that Basudev signed the note it is relevant to establish that Basudev admitted that he has signed it. This admission has been proved, and if believed it is a legal mode of proof of the fact in issue, namely, the fact of Basudev having signed the note. Whether it should be considered sufficient or not is a matter which we can go into on second appeal. 'This contention of the appellants, therefore, must fail.
4. The appellants' next contention relates to the finding of the District Judge that risk-note protects the Railway Company. The reasoning of the learned District Judge is this : The loss was due to theft from the train when she was running, that the word 'robbery' used in the risk-note being synonymous with 'theft', there was no 'wilful neglect' and so it was not a case of theft due to wilful neglect and consequently the case does not come within the exception mentioned in the risk-note. To appreciate
We agree and undertake to hold the Railway Administration...harmless and free from all responsibility for any loss, etc...from any cause whatever except for a loss due either to the wilful neglect of the Railway Administration or to theft by or to the willful neglect of its servants...provided the term 'wilful neglect' be not held to include fire, robbery from a running train or any other unforeseen event or accident.
5. It is clear from the risk-note that if robbery is synonymous with theft, then loss caused by theft from a running train is not loss due to wilful neglect of the administration or of its servants, and the case not coming within the exception, the Railway Company are absolved, and the Judge's reasoning is perfectly sound. For the proposition that robbery as used in the risk-note is synonymous with theft there is a divergence of judicial opinion. The Allahabad High Court by a Full Bench has now held that it is not : Bindraban v. G.I.P. Ry. Co. : AIR1926All394 and the Patna High Court has taken the same view : Kashi Ram Karoo Bam v. E.I. Ry. Co. A.I.R. 1927 Pat. 9. The Bombay and the Lahore High Courts appear to be of a contrary opinion : B.B. & C.I. Ry. v. Sankar Chand A.I.R. 1922 Bom. 256 and Gulab Rai Lahri Mal v. E.I. By. Co. A.I.R. 1925 Lah. 515. We have not been referred to any decision of our Court on the point, and being free to decide the question res integra I find it exceedingly difficult to regard the terms 'robbery' and 'theft' as synonymous. My reasons are mainly two : first because the two words have been used within a few lines of one another in the same document and, therefore, should be presumed to have been used in different senses; and second because the word 'robbery' is preceded and followed by words implying situations over which the Railway Company themselves or their servants can have no control. For these reasons I am of opinion that the view taken by the learned District Judge that the words 'theft' and 'robbery' mean one and the same thing is not right. The word 'robbery', in my opinion, has been intended to convey the sense in which the word is used in the Indian Penal Code, that is to say, a felonious taking from the person of another or in his presence against his will, by violence or putting him in fear. His finding that there was no wilful neglect merely because there was theft from a running train in my opinion is not right.
6. This finding being vitiated by the error that I have noticed, it is necessary to consider whether the case should not be sent back to the Court of appeal below to be dealt with again. Giving the matter the consideration that it deserves I am of opinion that it is not necessary to do so and that this is a proper case in which we may well exercise our powers under Section 103, Civil P.C., as recently amended. The District Judge has referred in his judgment to the evidence of one single witness, namely D.W. 3, in support of his finding that the consignment in question was put in a sealed wagon the doors of which were closed. He, however, failed to appreciate that the witness was a loading clerk at Howrah who could only speak to the state of things as they were before the wagon left Howrah. The evidence of this witness was disbelieved by the trial Judge; but however that may be it is clear upon his evidence that the door of the van was not padlocked as it was not the practice to padlock the doors of such vans in those days. The positive evidence on the point is afforded by the statement of the guard in charge of the train, Ex. C, a document on which the Railway Company themselves have relied which is to the effect that there was no seal as it was a road van. Whether mere sealing is at all effective it is unnecessary to enquire, it is sufficient that that there was no seal, and what is more important is that the system of putting padlocks on was not insisted on in those days. Wilful neglect for the purposes of a risk-note has not been explained by their Lordships of the Judicial Committee in the case of Ardeshir Bhicaji Tamboli v. Agent, G.I.P. Ry. Co. A.I.R. 1928 P.C. 24 in accordance with the meaning given to the expression by Lord Russel in R. v. Senior  1 Q.B. 283,
as meaning that the act is done deliberately and intentionally and not by accident or in-advertance, but so that the mind of the person who does the act goes with it.
7. It was not an accidental omission that the door of the van was not padlocked; it was the practice not to do so, and so it was a deliberate and intentional omission. That the loss was due to this omission is pretty certain, for it was a factor that facilitated the theft which otherwise it would have been infinitely more difficult to perpetrate. The case therefore does come within the exception mentioned in the risk-note.
8. To such a case then the statutory responsibility of a Railway Company under Section 72, Railways Act, would attach. The question that next needs investigation, therefore, is whether the administration as bailee has fulfilled the standard of care laid down in Section 151, Contract Act. The finding of wilful neglect covers much the same ground as Section 151, Contract Act, in view of the circumstances of the case for it is inconceivable that a man of ordinary prudence would let similar goods of his own to be carried in an unlocked van in similar circumstances.
9. The result is that in my judgment, the plaintiffs have made out a case fully entitling them to recover. The appeal is accordingly allowed and the decree of the lower appellate Court being reversed, that of the trial Court is restored with costs in this Court and the lower appellate Court.
10. I agree.