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IN THE HIGH COURT OF BOMBAY
(D.B. Padhye and G.G. Bhojraj JJ.)
JIWANPRAKASH - Appellant
Versus
STATE OF MABARASHTRA - Respondent
Advocates appeared
For appellant – V.R. Manohar
For respondent - M.B. Mor, Assistant Government Pleader.
CRIMINAL LAW - EVIDENCE - HANDWRITING EXPERT OPINION - IDENTIFICATION OF ACCUSED - CIRCUMSTANTIAL EVIDENCE - CORROBORATION - IDENTIFICATION PARADE - INCRIMINATING CIRCUMSTANCES - EXPLANATION BY ACCUSED - FAILURE TO PROVE GUILT BEYOND REASONABLE DOUBT.
Fact of the Case:
The accused was charged with theft, forgery, and cheating. The prosecution's case rested on the testimony of eyewitnesses, the opinion of a handwriting expert, and circumstantial evidence.
Finding of the Court:
The court found that the eyewitness testimony was unreliable, the handwriting expert's opinion was not conclusive, and the circumstantial evidence was either not incriminating or had been adequately explained by the accused. As a result, the court held that the prosecution had failed to prove the accused's guilt beyond a reasonable doubt.
Issues: 1. Whether the eyewitness testimony was reliable. 2. Whether the handwriting expert's opinion was conclusive. 3. Whether the circumstantial evidence was incriminating.
Ratio Decidendi: 1. The court found that the eyewitness testimony was unreliable because the witnesses had seen the accused in handcuffs prior to the identification parade and had also seen him in the courtroom prior to their testimony. 2. The court found that the handwriting expert's opinion was not conclusive because the expert had not compared the disputed writings with the accused's previous admitted writings. 3. The court found that the circumstantial evidence was either not incriminating or had been adequately explained by the accused.
Final Decision: The court allowed the appeal and set aside the accused's conviction and sentences.
BHOJRAJ J.-The accused Jiwanprakash son of pandurang Mokashe, aged 25 years, a clerk in the State Bank of India, Wardha, stood charged before the Sessions Judge, Wardha with offences punishable under sections 380, 381, 467,468,465 read with sections 471 and 420 of the Indian Penal Code. The charges against him were that on or about 27-2·1967 at Wardha, while employed as a clerk at the State Bank of India, he committed theft of a bank Draft No. J-942980. Between 27-2-1967 to 3-3-1967 he committed forgery in respect of this draft and the concerned documents such as an advice and a list of originating credits concerning the said draft, and this with an· intent to cheat the State Bank of India, Katol Branch. Further, between 27-2-1967 to 3-3-1967, he committed forgery in respect of the above said documents intending that they shall be used for purposes of cheating. He had also on 3-3-i967, at Katol, dishonestly used as genuine the abovesaid draft and the concerned documents knowing them to be forged. Finally, he had cheated the Katol Branch of the State Bank of India· by dishonestly inducing it to deliver an amount of Rs. 5450 against the above said documents on 3-3-1967.
2. The Sessions Judge, Wardha, convicted the accused, the present appellant under sections 381, 467, 468, 465 read with sections 471 and 420 of the Indian Penal Code. Under section 467 of the Indian Penal Code, the sentence was of rigorous imprisonment for a period of four years and a fine of Rs. 6000 and in default, rigorous imprisonment for one year. Out of the fine realised, Rs. 5450 were directed to be paid to the State Bank of India, at Katol, Under each of the sections 381 and 420, Indian Penal Code, the accused was sentenced to rigorous imprisonment for one year. No separate sentences under sections468 and 465 read with section 471, Indian Penal Code have been passed. The substantive sentences have been directed to run concurrently.
3. The accused appeals against the convictions and sentences.
4. The version of the prosecution is as follows. The accused was working as a Clerk in the Wardha Branch of the State Bank of India. He was transferred to Wardha from Fonda in 1966 about 4 to 5 months prior to the time at which the alleged offences were committed. In the said Office at Wardha, be was sitting on the right side of Clerk, Meshram (P. W. 3) in the present case). Between the two, there was only a drawer ; thus the two were sitting at a short distance from each other. Meshram used to get forms of drafts from the Accountant Kanible who is P. W. 2 in the present case. On receipt of the forms it was for Meshram to issue the said forms.
5. On 25-2-1967, Meshram received from Kamble drafts forms in two instalments, the first of forms Nos. J942954 to J942970 ; the second instalment being Nos. J942971 to J942980. As stated at the outset, the form with which we were concerned in the present case is No. J-942980. In the evening, Meshram returned to Kamble forms Nos. J-942970 to J-942980. The next day 26-2-1967 was Sunday.· On Monday 27-2-1967, Meshram received from Kamble in the first instalment forms Nos. J-942970 to J-942980. Thus, this instalment included the form with which we were concerned in the present case. Subsequently, at about 11-30 a. m. he took the second instalment. At this time also, according to Meshram, the form in question was with him.
6. After taking the second instalment at about 12 noon, Meshram went for taking tea and was absent for 5 to 7 minutes. The accused continued to be in his seat. At about 12-30 p.m., Meshram found that the form No. J-912980 in question was missing. After enquiries from the accused and others and a fruitless search, Meshram informed the Accountant Kamble P. W. 2. Kamble and the other employees also made a search but the form could not be found. An intimation was accordingly sent to the Head Office about the Joss of such a blank form of the draft. A request was also made that instructions should be sent to al
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