Haru Mohan Ghora vs The State of West Bengal

Kanchan Chakraborty, J.—The challenge in this appeal is to the judgment dated 22.4.2010 passed by the learned Judge, Special Court No. 1, Howrah thereby convicting the appellant Haru Mohan Ghora u/s 409 of the I.P.C. and sentencing him to suffer R.I. for four years with a fine of Rs. 10,000/-. Ashoke Kr. Maity, the then Superintendent of Post Offices at Howrah Division got an information from one Gautam Chakraborty over phone that at about 11.45 A.M., Haru Mohan Ghora, a Post Man attached to Howrah Post Office sold some postal documents which ought to have been delivered to the addressees on behalf of the Postal Department to one shop located at Kali Babur Bazar, 23, K. K. Bhattacharyya Lane, Howrah. On receipt of such information over phone of one Gautam Chakraborty, Care Taker of the Howrah Head Post Office, Ashoke Kr. Maity, P.W.1 had been to the said shop located at Kali Babur Bazar and in his utter surprise found that some unregistered letters or other postal articles were being weighed in that shop. He detained the accused and informed the matter to the Howrah Police Station over phone. Police officials from Howrah Police Station reached there at 12.15 P.M. Haru Mohan Ghora was handed over to the police along with the articles. A complaint was drafted by Ashoke Kr. Maity, P.W.1 and the same was forwarded to the Police Station. The owner of the shop was also arrested. On receiving the F.I.R. from Ashoke Kr. Maity, P.W.1, Howrah Police Station Case No. 147 of 2007 dated 18.7.2007 was started u/s 409/411 of the I.P.C. On conclusion of investigation into the case, charge sheet was filed against the appellant, Haru Mohan Ghora for committing offence punishable u/s 409 of the I.P.C. and against the accused No. 2, Lal Chand Shaw for committing offence punishable u/s 411 of the I.P.C. The charge so framed against him u/s 409 of the I.P.C., the appellant Haru Mohan Ghora pleaded not guilty. The trial commenced and 11 witnesses were examined on behalf of the prosecution. Some documents, such as, F.I.R., letter of sanction, sanction order, seizure list, sketch map of the P.O. were admitted into evidence and marked exhibits on behalf of the prosecution. No witness was examined nor any document was filed in course of trial on defence side. The learned Court upon consideration of the evidence on record, oral and documentary come to a conclusion that the prosecution brought home the charge u/s 409 of the I.P.C. against the appellant, Haru Mohan Ghora and accordingly, recorded the order of his conviction and sentence which is impugned in this appeal on the following grounds;

a) that the learned Trial Court was completely ignored or of oblivious about the discrepancies regarding time of occurrence and place of occurrence;

b) that the source Gautam Chakraborty who allegedly informed the incident to the P.W.1, has not supported the case of the prosecution to that effect;

c) that the learned Court did not take into consideration that the time of alleged seizure which is not matching with the time stated by the P.W.1;

d) that nowhere within the fourcorners of the prosecution case, it was stated that the appellant was given those particular postal documents for the purpose of delivery to the addressees but that fact was accepted by the learned Court simply on presumption which, according to law, cannot be taken in such a case;

e) that the learned Court ignored that P.Ws.6, 7, 8 and 9 did not support the prosecution case and weighing materials were not seized;

f) that as no case of entrustment has been established, the learned Court erred in convicting the appellant u/s 409 of the I.P.C.; and

g) that the judgment impugned being otherwise bad in law, is liable to be set aside.

Mr. Roy, learned Counsel appearing for the appellant contended that there was no evidence whatsoever either oral or documentary to show that the articles seized under the seizure list being Ext.4 were entrusted with the appellant by the Postal Department for the purpose of distribution amongst the addressee there are. He has taken this Court to the evidence of P.W.1 and contended that P.W.1 has stated categorically that no record is being maintained for giving Post Man Postal documents for delivery to the addressees. He failed to show in his cross-examination that how many letters were delivered on that particular date and how many letters were not delivered on that particular date. From his cross-examination, it appears that there were 48 Postal Peon attached to the Howrah Main Post Office and they were supposed to distribute ordinary postal letters or documents to the addressee. The P.W.1 was not in a position to say which letter was handed over to which Peon on that date for delivery.

I have gone through the judgment impugned with great attention. It appears to me that the learned Court had taken it for granted that since the appellant was found in the shop and some postal letters were being weighed, the letters were given to him by the post office for the purpose of delivery. Simply because the appellant was a Postal Peon and his duty was to deliver letters to the addressee and found in the shop of the co-accused, the learned Trial Court came to a conclusion that in all probabilities, he was entrusted with the Government properties such as, postal documents. Apparently, such a view cannot be ignored but when the P.W.1 has stated categorically that he had no idea as to amongst 48 number of Postal Peon were entrusted to deliver those seized postal documents, it is really difficult for the Court to come to such a conclusion that the appellant was entrusted with that job and he was taken possession of those letters for the purpose of delivery to the addressees but sold those to the co-accused against consideration. This view of the learned Court based on presumption without supported by any evidence can hardly be accepted specially in a case u/s 409 of the I.P.C.

Mr. Roy, learned Counsel appearing on behalf of the appellant taken this Court to the evidence of P.W.1 and the F.I.R. F.I.R. has been marked as Ext.1 in this case. It does not say anything about the entrustment. In the F.I.R., it is stated that the appellant handed over huge book post, book packet etc. in bulk to the co-accused in lieu of consideration. It was written on 18.7.2007 and received by the Howrah Police Station at 15.30 hours, i.e., 3.30 P.M.

As P.W.1, the lodger of the F.I.R., Ashoke Kr. Maity stated that he came to know Gautam Chakraborty, Care Taker of Howrah Head Post Office over mobile phone that the appellant sold journals, magazine etc. which were supposed to be delivered by him to the addressees.

Gautam Chakraborty has been examined as P.W.4. He has not stated that he had made such phone call to Mr. Maity. Rather on that date, Khagendra Nath Ghosh, Head Clerk of the Post Office asked to Gautam Chakraborty to accompany him. At about 02.30 P.M./03.00 P.M., Gautam Chakraborty, Susanta De and Khagendra Nath Ghosh went to the Police Station and found Mr. Maity, P.W.1 in the Police Station. He was shown some articles, which he identified as postal articles. He stated also that he did not know what mischief Haru Mohan Ghora had actually did. In his cross-examination he declined that he stated Police that he saw Haru Mohan Ghora, the appellant to take out several postal articles and that he reported the matter to the Officer and that the Officer asked him to follow the appellant after following the appellant, Haru Mohan Ghora, he found that the appellant went to the shop of the co-accused at K. K. Bhattacharyya Lane, Howrah. He denied that he saw the appellant to sell those articles. He denied also that he did not tell anything to any officer to the Postal Department about the incident. There are discrepancies in the statement of P.W.1 and P.W.4 on material points. If Gautam Chakrborty did not inform the P.W.1, Mr. Maity, it is not understood how Mr. Maity came to know about the incident and went to the place of occurrence. He being the Superintendent of the Head Post Office was not supposed to follow the Post Man against any definite allegations against such a Post Man. That fact has never been forecasted in the testimonies of all the witnesses examined on behalf of the prosecution.

According to the P.W.1, he received an information over phone from Gautam Chakraborty, P.W.4 and had been to the shop of co-accused at K. K. Bhattacharyya Lane at about 11.45 A.M. and found the appellant sitting inside the shop. He also found that the postal articles were being weighed in that shop. He detained the appellant and informed the matter to the Howrah Police Station at 12.15 P.M. Police Officials from Howrah Police Station came to the shop and thereafter the appellant was handed over to the Police with the articles seized. P.W.1 went back to his office straight from the shop of K. K. Bhattacharyya Lane, drafted the FIR and sent it to the Howrah Police Station. He has not stated anywhere that he had gone to Howrah Police Station personally in order to lodge the F.I.R.

It appears from the evidence of P.W.4 that when he together with Khagendra Nath Ghosh and Susanta De had gone to Howrah Police Station at 02.30/3.00 P.M., they found the P.W.1 in the Police Station. He was asked by the Superintendent Mr. Maity as to how the materials of Post Office could go out of the Post Office. It is not understood that being a Superintendent of the Post Office, he could ask such a question to the P.W.4, the Care Taker of the Post Office. But this fact does not indicate that the P.W.1 Mr. Maity told Gautam Chakraborty, P.W.4 in presence of Susanta Dey and Khagendra Nath Ghosh that the appellant was entrusted with postal articles which he taken to the shop of co-accused at K. K. Bhattacharyya Lane and sold it against consideration. There are discrepancies in the statement of P.W.1 even in the matter of filing of the FIR and disclosure of the fact to him as well as to others.

The P.W.1, Mr. Maity did not sign the seizure list. He was not even examined by the I.O. and his statement was not recorded u/s 161 of the Cr. P.C. What he stated in his cross-examination is also worth noting. He stated that he did not enquire as to whether the book posts or letters or envelopes reached the addresses as those documents were actually delivered to the addressees on that particular date or on the date those were found in the shop of the co-accused. This fact shows simply that the P.W.1 neither received any information nor he enquired into the matter about the entrustment of the letter and delivery of letters by the appellant on that particular date.

The P.W.2, Subhasish Das stated that on the relevant date at about 12.00 hours, he along with P.W.1 had been to show of the co-accused at K. K. Bhattacharyya Lane. He found Haru Mohan Ghora there and some public apprehended him as he was selling magazine and other postal documents to be distributed to the addressees. He found Haru Mohan Ghora was sitting inside the shop while several postal articles were found in scattered conditions. He signed the seizure list prepared by the police. He also stated that Khagendra Nath Ghosh was an employee of the said post office who accompanied them to K. K. Bhattacharyya Lane also signed the seizure list. The statement of the P.W.2 should not have been relied on by the learned Trial Court. Firstly, the P.W.1 did not state that he had taken P.W.2 with him in the shop of the co-accused upon receiving the information. Secondly, the P.W.2 did not find that postal articles were being weighed as stated by the P.W.1. Thirdly, the P.W.2 has stated that some public apprehended Haru Mohan Ghora while the postal articles were found in scattered conditions. All these statement made by P.W.2 is contradictory to the statement of the P.W.1 who said that he detained Haru Mohan Ghora and that weighment of postal articles was on process when he reached there. P.W.2 also failed to say in the cross-examination whether the articles so found in the shop of the co-accused at K. K. Bhattacharyya Lane were handed over to the appellant for the purpose of distribution amongst the addressees. The evidence of P.W.2 cannot also be accepted because according to the P.W.4, Khagendra Nath Ghosh had been to the Police Station with P.W.4 at 02.30/3.00 P.M. Said Khagendra Nath Ghosh who was examined as P.W.3 stated that he went to the place of occurrence as per the order of Mr. Maity, P.W.1. Therefore, it is clear that he did not accompany either the P.W.4 or the P.W.1 if we believe the statement of P.W.3. If we believe the statement of P.W.1, neither P.W.2 nor P.W.3 accompanied him to the place of occurrence. If we believe the statement of P.W.4, then P.W.3 went to the Police Station with him. If we believe the statement of P.W.2, the P.W.3 accompanied him and Ashoke Kr. Maity to the place of occurrence. The presence of the witnesses at the place of occurrence appears to be doubtful.

If we accept the evidence of P.W.1 and the Ext.1, then seizure and arrest of the appellant was made prior to the lodging of the F.I.R. The seizure list, according to the P.W.2, was prepared on spot. The P.W.1 was not a signatory to the seizure list but the P.Ws.2 and 3 were. According to their statement, seizure was obviously done prior to the initiation of the case by way of lodging FIR, Ext.1 which according to the P.W.1, sent by him to the Police Station after his returning back to office form the place of occurrence but according to the P.W.4, the P.W.1 was in the Police Station itself immediately after the incident.

The evidence of P.W.5 should not have been admitted into evidence as his evidence was entirely hear say evidence in respect of the incident alleged. According to him, Khagendra Nath Ghosh informed him that Haru Mophan Ghora was apprehended while selling postal articles to a shop. This fact has not been stated by P.W.3, Khagendra Nath Ghosh. He has not stated that he narrated any such incident to the P.W.5. P.W.5, however, went to the Police Station and he was shown some postal articles. He was not examined by the I.O. also. He did not sign the seizure list. His evidence, in my estimate, is not going to help the prosecution in any manner.

The P.Ws.6, 7 and 8 were the people of the area where the place of occurrence was situated. The P.W.6 stated that he signed on a blank paper at the request of the Police. The P.W.7 also stated that he signed on a blank paper as per direction of the Police. The P.W.8 had been to the Police Station in the evening and signed the blank paper, which was admitted into evidence and marked Ext.4 (Seizure list). All these three independent witnesses did not support the prosecution case.

P.W. 9 stated that he heard the incident from Susanta Dey (P.W.5) and Gautam Chakraborty (P.W.4) that the appellant was arrested by Howrah Police Station as he sold some postal documents to a shop. This portion of the evidence of P.W.9 should not have been admitted into evidence as neither P.W.4 nor the P.W.5 has stated that they narrated that such incident to the P.W.9. That portion of evidence of P.W.9 is being hear say evidence should not have been taken into consideration by the learned Trial Court. The P.W.9 stated further that at the request of his elder brother Khagendra Nath Ghosh, P.W.3, he went to the Police Station at about 01.30 to 02.00 hours and found the appellant inside the lock up. It is to be noted here that the F.I.R. was received at 03.30 P.M. If so, it is not understood how a person can be locked up inside the Police Station before the case was started against him.

The P.W.11 was the I.O. of the case. In his cross-examination, he stated that complaint was lodged earlier and after receiving the complaint, he proceeded to the place of occurrence. If so, it is not understood why the P.Ws.1 and 2 stated that the appellant was handed over to police by them from the place of occurrence before lodging of the F.I.R. He stated that he went to the place of occurrence at 16.30 hours, i.e., 04.30 P.M. The time stated by the I.O., P.W.11 is neither tallying with the time given in the F.I.R., time stated by the P.Ws.1, 2, 3, 4 and 5. This statement of the I.O., in my opinion, destructed the prosecution case entirely. The P.W.11, i.e., the I.O. found the defacto complainant, i.e., Mr. Maity, P.W.1, the accused persons, P.W.3, P.W.4, P.W.5 on spot. If this statement is believed, all the statements of P.Ws.1, 2, 3, 4 and 5 is to be disbelieved.

It is needless to say that weighing materials were not seized by the I.O. from the place of occurrence and he did not also state that the weighment of postal articles were under process.

From the discussions above, it is clear that the prosecution case was full of contradiction and tainted with embellishment and exaggeration. The statement of the witnesses not only contradictory to each other and almost one facts but specially on material facts like time and place. There is no evidence whatsoever also which established that the appellant was entrusted with the properties of the postal department and that he breaches the trust.

Mr. Mitter, learned Counsel appearing for the State of West Bengal stated that the learned Court had no alternative but to come to such a conclusion because it was established that the appellant was none but a Postal Peon and that he was in charge of delivery of ordinary papers. This facts together indicates that he committed the offence.

I do not find any substance in such a proposition of Mr. Mitter, learned Counsel appearing for the State. On scrutiny of articles, this Court finds that the learned Trial Court did not probe deep into the matter and scan the evidence thoroughly. The learned Court failed to observe that there were discrepancies on material issues between the statement of witnesses, which strikes the very root of the prosecution case. This case, in my humble estimate, has not been proved by satisfactory and sufficient evidence. Accordingly, this Court does not agree with the view of the learned Trial Court.

In view of the discussions above, the judgment impugned is set aside and the appeal succeeds. The appellant be set at liberty at once and discharge from bail bond. Urgent photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary formalities.