iminal Appeals Nos 150 and 185 of 1961
Appeals by special leave from the judgment and order dated June 19 1961 of the former Bombay High Court in Criminal Appeals Nos 218 and 242 of 1961 respectively
section Mohan Kumarmangalam R K Garg and M K Ramamurthi for the appellant in Cr A No 15061
B M Mistry Ravinder Narain and J B Dadachanji for the appellant in Cr A No 185 of 1961
B K Khanna B R G K Achar and R H Dhebar for the respondent in both the appeals
February 26 1964
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
Shiv Prasad Chunilal Jain appellant in Criminal Appeal No 150 of 1961 was accused No 3 and Pyarelal Ishwardas Kapoor appellant in Criminal Appeal No 185 of 1961 was accused No 2 at the Sessions Trial before the Additional Sessions Judge Greater Bombay
Along with them was a third accused Rameshwarnath Brijmohan Shukla who was accused No 1 at the trial
As the two appeals arise from a common judgment we would dispose of them by one judgment
The appellants would be referred to as accused No 3 and accused No 2 respectively
The facts leading to the conviction of the appellants are that a large quantity of iron angles was consigned early in February 1959 from Gobind Garh to Raypuram under railway receipt No 597481 They were despatched in an open wagon bearing ER No 69667
The labels of the wagon were changed at Itarsi railway station and it was diverted to Wadi Bunder under a label showing that the iron angles had been despatched from Baran to Wadi Bunder under railway receipt No 43352 dated February 6 1959
This wagon reached Wadi Bunder on February 16 1959
On February 17 it was unloaded by Baburao 923 Gawade PWI and Shridhar PW 14
On February 18 accused No 1 obtained the delivery sheet of the bill and signed it in the name of Shri Datta
He also obtained delivery of the iron angles from the railway and signed the Railway Delivery Book in the name of Shri Datta
The railway authorities delivered these on the presentation of the forged receipt No 43352 and on payment of the charges amounting to Rs 1500 
These iron angles were then transported to the godown of the National Transport Company at Sewri and stored there
The entries in the book showed their receipt in the account of accused No 3 and also contained a further entry indicating the goods to be received in the account of accused No 2
The latter entry was made on the receipt of a chit Exhibit Z8 from accused No 1 saying that the goods be entered in the name of accused No 2
On February 24 1959 the accused No 2 signed an application Exhibit K addressed to the head office of the National Transport Company for delivering the goods
Accused No 1 obtained the goods from the godown of that company on February 26 and March 3 1959
A complaint by the original consignee about the nonreceipt of the iron angles sent from Gobind Garh led to an enquiry and eventual prosecution of the three accused
Six charges were framed
The first charge was against all the accused for an offence punishable under sections 471 and 467 read with section 34 IPC and stated that in furtherance of their common intention to cheat the railway administration accused No 1 had fraudulently or dishonestly used the forged railway receipt No 43352
The second charge was framed in the alternative
Firstly it charged all the accused for an offence under section 467 read with section 34 IPC on account of accused No 1 having forged the bill portion
In the alternative accused No 1 was charged with the offence under section 467 IPC and the other accused Nos 2 and 3 were charged under section 467 read with section 109 IPC for having abetted accused No 1 in the commission of that offence
924 Charges Nos 3 to 6 were similarly framed in the alternative ie in the first instance all the three accused were charged with certain offences read with section 34 IPC while in the alternative accused No 1 was charged of the specific offence and the other two accused were charged with that offence read with section 109 IPC The accused were tried by the Additional Sessions Judge Greater Bombay with the aid of a jury
The jury returned a unanimous verdict of guilty against all the accused for the various offences read with section 34 IPC
The verdict of the jury was not recorded with respect to the five alternative charges against accused No 1 regarding substantive offences and against accused Nos 2 and 3 with respect to the various offences read with section 109 IPC The Sessions Judge accepted the verdict of the jury and convicted them of the various offences read with section 34 IPC Their appeals to the High Court were unsuccessful and therefore accused Nos 2 and 3 have preferred these appeals after obtaining special leave from this Court
The main contention for the appellants is that the learned Sessions Judge misdirected the jury with respect to the requirements of section 34 IPC
The contention is that the various offences were actually committed by accused No 1 on February 18 that neither accused No 2 nor accused No 3 was present when he presented the forged railway receipt did other criminal acts and took delivery of the iron angles and that therefore even if they had agreed with accused No 1 for the cheating of the railway administration by obtaining the iron angles dishonestly by presenting the forged receipt they might have abetted the commission of the various offences but could not be guilty of those offences with the aid of section 34 IPC whose provisions it is contended do not apply in the circumstances of the Case
It is contended that for the applicability of section 34 against an accused it is necessary that that accused had actually participated in the commission of the crime either by doing something which forms part of the criminal act or by at least doing something which would indicate that be was a participant in the commission of that criminal act at the time it was committed
Reliance is placed on the 925 cases reported as Barendra Kumar Ghosh vs The King Emperor1 and Shreekantiah Ramayya Munipalli vs The State of Bombay2
The learned Sessions Judge in the instant case had told the jury  In case you come to the conclusion that there was a common intention in the minds of all the three accused and accused No 1 was acting in furtherance of that common intention all the accused would be answerable for the offences proved against accused No 1 by virtue of the provisions of section 34 of the Indian Penal Code and it would be no answer to the charge to say that the acts were done by accused No 1 alone
Therefore you have first to consider for yourselves what offences are proved against accused No 1
You have next to ask yourselves whether it is proved and it can also be proved by circumstantial evidence that there was a common intention in the minds of all the three accused and the acts done by accused No 1 were done in furtherance of that common intention
If your answer is yes  all the three accused would be guilty of the charges proved against accused No 1 by virtue of section 34 of the Indian Penal Code
 It is contended that in thus putting the case to the jury the learned Sessions Judge was in error as he did not take into consideration the fact that accused Nos 2 and 3 were not present at all at the time when the various offences were actually committed by accused No 1
The two cases relied upon by the appellants support their contention
In Shreekantiah s case2 three persons were convicted on several charges under section 409 read with section 34 IPC for committing criminal breach of trust of certain goods entrusted to them as government servants in charge of the stores depot 1 LR 52 IA 40
2  926 at Dehu Road near Poona
The stores had illegally passed out of the depot and were handed over to a person who was not authorised to get them from the depot
It was alleged that those accused had conspired to defraud the Government of those properties and that it was in pursuance of that conspiracy that they had arranged to sell the goods to the other person
Accused No 1 in that case was not present when the goods were loaded nor was he present when they were allowed to pass out of the gates that is to say he was not present when the offence was committed
Bose J delivering the judgment of the Court said at p 1189  If he was not present he cannot be convicted with the aid of section 34
He could have been convicted of the abetment had the jury returned a verdict to that effect because there is evidence of abetment and the charge about abetment is right in law
But the jury ignored the abetment part of the charge and we have no means of knowing whether they believed this part of the evidence or not
 In considering the misdirection in the charge to the jury and the requirements of section 34 IPC the learned Judge said at p 1188  The essence of the misdirection consists in his direction to the jury that even though a person may not be present when the offence is actually committed  and even if he remains behind the screen  he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention
This is wrong for it is the essence of the section that the person must be physically present at the actual commission of the crime Shreekantiah s case1 is practically similar to the present case
Both accused No 2 and accused No
3 deny their presence at the railway station on February 18 when the various offences were committed
None deposed that accused No 3 was then present
The presence of accused No 2 was however stated by Babu Rao Gawade PW 1
1  927 He had not stated so in his statement before the police during investigation and the summing up by the learned Sessions Judge was that under those circumstances it was for the jury to consider whether to believe the statement of the s witness in Court or not
It cannot be said as there was other evidence against accused No 2 as well about his connection with this criminal transaction whether the jury believed his presence at the railway station on February 18 or not
In Jaikrishnadas Manohardas Desai vs The State of Bombay1 Shreekantiah s case2 came up for consideration and was distinguished on facts
In that case the two accused who were directors of a company were convicted of an offence under section 409 read with section 34 IPC for committing criminal breach of trust with respect to certain cloth supplied to them
It was alleged that one of the accused was not working at that factory during the period when the goods must have been removed and that therefore he could not be made liable for the misappropriation of the goods by taking recourse to the provisions of section 34 IPC Shah J delivering the judgment of the Court said at p 326 But the essence of liability under section 34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under section 34 is not on the words of the statute one of the conditions of its applicability 
A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of section 34
But this participation need not in all cases be by physical presence
In offences involving physical violence normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary but such is not the case in respect of other offences where the offence  consists of diverse acts which may be 1 2  928 done at different times and places
In Shree Kantiah s case1 misappropriation was com mitted by removing the goods from a Government depot and on the occasion of the removal of the goods the first accused was not present
It was therefore doubtful whether he had participated in the commission of the offence and this Court in those circumstances held that participation by the first accused was not established
The observations in Shree Kantiah s case1 in so far as they deal with section 34 of the Indian Penal Code must in our judgment be read in the light of the facts established and are not intended to lay down a principle of universal application Accused No 1 in the present case alone did the various acts on February 18 1959 which constituted the offences of which he was convicted
Accused Nos 2 and 3 took no part in the actual commission of those acts
Whatever they might have done prior to the doing of those acts did not form an ingredient of the offences committed by accused No 1
They cannot be said to have participated in the commission of the criminal act which amounted to those various offences
They cannot be therefore held liable by virtue of section 34 IPC for the acts committed by accused No 1 alone even if those acts had been committed in furtherance of the common intention of all the three accused
The result therefore is that the conviction of the appellants viz accused Nos 2 and 3 for the various offences read with section 34 IPC is to be set aside
We did not hear at first the learned counsel for the appellants on the alternative offences of abetment being made out against the appellants and with respect to which the verdict of the jury was not recorded by the Sessions Judge
We did not consider it necessary to remit the case for further proceedings with respect to those charges and preferred to dispose of the case finally after giving a further hearing to the learned counsel for the appellants
We accordingly heard them on the charges relating to the appellants abetting accused No 1 in the commission of the 1  929 various offences subject matter of charges Nos 2 to 6 and now deal with that matter
We need not discuss the evidence on the record and would just note the various facts which are established from the evidence or which are admitted by the accused
The relevant facts having a bearing on the question of accused No 2 abetting the commission of the offences com mittedby accused No 1 are  1
Accused No 1 is the servant of accused No 3 at whose shop accused No 2 who is a broker sits
Accused No 2 deals in non ferrous goods
Accused No 2 went with Baburam Gavade PW 1 a clearing agent on February 17 1959 to see the goods
The godown register showed the angle irons to be received in the account of Shiv Prasad Bimal Kumar and Pyare Lal accused No 2
Accused No 2 wrote the letter Exhibit K to the National Transport Company for issuing the delivery order with respect to the angle irons in order to enable him to take delivery thereof
Accused No 2 was in possession of the note Exhibit Z 7 which he delivered to the police during the investigation
The relevant facts having a bearing on the alleged abetment of the offences by accused No 3 are 1
Accused No 1 is an employee of accused No 3 2
The angle irons were stored at the depot of the National Transport Company at the instance of accused No 1 3 The books of the godown noted their receipt in the account of accused No 3 though the account Showed further that they were received in the account of accused No 2
This further entry wasmade on receipt of Exhibit Z 8 from lm0 134 159 SC 59 930 accused No 1 when the last lot was delivered at the godown on February 18
The entire writing on Exhibit Z 7 except the signature of an unknown person and the date below it was written by accused No 3
That document reads To Piaraya Lal co Ms Sheopershad Bimal Kumar Bombay
No 43351 dated 4 2 59 Ashoknagar to Carnac Bridge
No 43352 dated 6 2 59 Baran to Wadi Bunder
I have received the material of the above RR which I have handed over to you for clearance
Sd Yashwant 24 2 1959
 Besides these circumstances it is urged for the State that the effect of the diversion of the wagon from its right course at Itarsi railway station indicates that the people responsible for it must have a fairly large and influential organization with funds and that such a diversion could no have been merely at the instance of accused No 1 all employee of accused No 3 who is a substantial merchant About Rs 15001 were paid as charges to the railway authorities before the angle irons could be taken delivery of Accused No 1 could not have been in a position to make that payment
It is further urged that accused No 1 would not have stored the goods with the National Transport Company unless the storage was on account of his master accused No 3
Accused No 2 admits his going to see the goods on February 17 but states that he lost his interest in the good as they were iron angles and his line of business was in non ferrous goods
He explains his singing the letter Exhibit 931 K by saying that he did so at the instance of accused No 3 who represented to him that accused No 1 had by mistake stored the goods in the name of accused No 2 and of accused No 3 showing him the document Exhibit Z 7 which he retained with himself
Accused No 3 states that he had nothing to do with this matter and that he wrote Exhibit Z 7 at the instance of accused No 2 who asked him to do so he himself being unable to write in English or Hindi
We now discuss the evidence to determine whether the accused Nos 2 and 3 abetted the commission of the offences committed by accused No 1
Exhibit Z 7 as originally written does not appear to have had the first line viz the writing of To Piaraya Lal Co 
This was written subsequently
This is clear as urged for accused No 2 from the facts that it appears to have been written with a different pen and possibly with different ink also and because the word Co  has been written at an unusual place
In ordinary writing it should have been in line with the latter expression Ms Sheopershad Bimal Kumar 
It follows therefore that this document was first written by accused No 3 to show that a third person had entrusted him with the railway receipt No 43352 dated February 6 1959 and that that person had received the material to which the railway receipt related
In this original form the only conclusion possible from the original contents of the document can be that Ms Sheopersbad Bimal Kumar of which accused No 3 is the proprietor received this receipt from the third person in order to clear the good
 from the railways
This would amply explain accused No 1 taking delivery of the goods on February 18 and storing them with the National Transport Company in the account of accused No 3 and the entries in the godown register
Himmatlal PW 13 is the godown keeper
He issued the receipt Exhibit PI which records We have today received the under mentioned goods for storage with us in our godown No IPL on behalf of and under lien to Shiv Prasad Bimal Kumar
 932 This is a clear indication of the fact that the goods were stored on behalf of Sheopershad Bimal Kumar ie accused No 3
The words under lien  are of great significance in this respect and show that the storage was not shown to be on behalf of accused No 3 merely because the angle irons were sent by accused No 1 who was an employee of accused No 3
The expression under lien  points to there being some specified transaction between accused No 3 and the National Transport Company for the storing of the articles
This note further confirms the statement of Himmatlal that he had all first written in the accounts that the goods were received on account of Sheopershad Bimal Kumar and that it was on receipt of Exhibit Z 8 from accused No 1 that he noted the words Account Pyare Lal  in the entries with respect to those goods
The circumstance that accused No 3 was in a better position to finance the transaction than accused No 1 is also consistent with the aforesaid conclusion from the original contents of Exhibit Z 7
Apart from the apparent later noting of the first line in this document Exhibit Z 7 there appears no good reason why the receipt should have been written in this form if it was to be written at the instance of accused No 2
There was no reason to give the address of Pyare Lal as co Ms Sheopershad Bimal Kumar
The later entry in this document must have been therefore for a purpose And that could have only been to show that the railway receipt No 43352 was dealt with by accused No 2 and not by accused No 3
Mention may be made here of the fact that certain witnesses who had during their police statements referred to certain actions of accused No 3 stated in Court that those acts were committed by accused No 2
No reliance can be placed on any of the statements of those witnesses and this fact is just mentioned to show that it fits in with the very first attempt in converting the document originally prepared to show that accused No 3 had dealt with this forged railway receipt into a document showing that it was 933 not accused No 3 but accused No 2 who dealt with that receipt
Accused No 2 has been acting as a broker
He signed Exhibit K
He must be conversant with the language in which he signed
It was not necessary that the receipt Exhibit Z 7 should have been written in English or in Hindi even if accused No 2 did not know any of those languages
We are therefore not prepared to accept the explanation of accused No 3 with respect to his recording the document Exhibit Z 7
We hold as admitted by him that he had written this document
It makes reference to the forged receipt of which advantage was taken in getting delivery of the iron angles
Accused No 3 writing such a receipt clearly points to his being concerned with the taking delivery of the iron angles by accused No 1 his employee
Once the forged receipt is traced to accused No 3 from his own writing the natural conclusion is that it was he who passed it on to his employee accused No 1 for the purpose of getting delivery of those goods from the railway authorities
He thus aided accused No 1 in obtaining delivery of those goods and in his committing the various offences for achieving that object
The further fact that the receipt was endorsed in the name of Datta and not in the name of accused No 1 also proves that accused No 3 must have known that the receipt he was dealing with was not a genuine receipt for the goods which were to be taken delivery of
If he had believed the receipt to be a genuine one he would have endorsed it or got it endorsed in the true name of his employee
His employee too would not have taken delivery under a false name
We are therefore of opinion that it is established from these various circumstances and facts that accused No 3 had abetted the commission of the offences the subject matter of charges Nos 2 to 6 by accused No 1
The points in favour of accused No 2 are that he does not deal in non ferrous metals and therefore he would not have taken any interest in the transaction after he had found out on February 17 that the goods were ferrous and not non ferrous
The fact that the goods were not stored in his name in the accounts of the godown of the National Trans 934 port Company but were stored in the first instance in the name of No 3 also goes in his favour
If accused No 3 had nothing to do with it and accused No 1 was simply acting for accused No 2 he would have sent instructions in the very first instance to Himmatlal that goods were to be stored in the account of accused No 2
He did not do so
He sent intimation for storing the goods in the name of Pyarelal with the last lorry transporting the iron angles to the godown
Pyarelal had no previous dealings with the National Transport Company
In this connection the exact direction given by accused No 1 is of some significance
The direction given by him in Exhibit Z 8 was Please give a receipt in the name of ac Pyare Lal 
The request was not that the goods were of Pyare Lal and so be stored on his account
That should have been the natural direction
The receipt would have then been issued in the name of Pyare Lal and of nobody else
The direction given by accused No 1 therefore indicates that for certain purposes he desired the receipt alone to be in the name of Pyare Lal
Naturally Himmatlal had to make some entry in the books of the godown which would be consistent with a receipt issued in the name of Pyare Lal
Himmatlal therefore noted the words account Pyare Lal  below the original note account Sheopershad Bimal Kumar  but saw no reason to make a statement in the receipt Exhibit P that the goods were stored on behalf of Pyare Lal and noted in it that they were stored on behalf and under lien to Sheopershad Bimal Kumar
Accused No 2 signed the letter Exhibit K for the issue of the delivery order
His explanation is that he did so when accused No 3 insisted and told him that his employee had by mistake stored the goods in his name
Ordinarily this should not have been believed by accused No 2 as there was no reason why accused No 1 should store the goods in his name by mistake
He could have and might have suspected something not straight but could shake off such suspicion by his being shown the receipt Exhibit Z 7 which showed that the goods had been cleared by A 3 on behalf of certain person who had passed on that receipt
He was under an obligation to accused No 3 and it is possible that he could 935 not have strongly resisted the request of accused No 3 sign the letter Exhibit K
Accused No 3 had necessar to obtain a letter signed by Pyare Lal when the goods has not been shown to be stored in his account but were not in the account of Pyare Lal or of both Sheopershad Bin Kumar and Pyare Lal
It is significant that accused No 2 himself did not to take delivery of the goods
It was accused No 1 was took the delivery in two lots and each time signed the receipt in the name of Pyare Lal
If accused No 2 was also a party to the dishonest obtain ing of the goods from the railway there would not ha been any occasion for such duplication of names on who behalf the goods were stored with the National Transport Company or for such a document as Exhibit Z 7 commitment into existence or for accused No 2 keeping the document with himself
He kept it with himself for his protection an produced it for that purpose during investigation
It may be that when accused No 3 tried to dispel his doubts wh
he was requested to sign the letter Exhibit K accused No himself suggested the receipt Exhibit Z 7 to be address in his name as only then that receipt could be of any he to him
In these circumstances we are of opinion that the complicity of accused No 2 in the commission of the varios offences by accused No 1 is not established beyond reason able doubt
We therefore allow the appeal of Pyare Lal and acquired him of the offences he was convicted of
We dismiss tl
appeal of accused No 3 Shiv Prasad Chunilal Jain by alter his conviction for the various offences read with section 3 IPC to those offences read with section 109 IPC and mainta
the sentences
Appeal No 185 allowed at Appeal No 150 dismisses Conviction altered and sentence maintained


Summary:
In a trial by jury the appellants were jointly charged along with accused No 1 with an offence punishable under sections 471 and 467 read with section 34 of the Indian Penal Code
The first charge was that in 921 furtherance of their common intention to cheat the railway administration accused No 1 had fraudulently or dishonestly used the forged railway receipt
The second charge was framed in the alternative
Firstly it charged all the accused under section 467 read with section 34 IPC on account of accused No 1 having forged the bill portion
In the alternative accused No 1 was charged under section 467 IPC and the appellants were charged under section 467 read with section 109 IPC for having abetted accused No 1 in the commission of that offence
Similarly charges Nos
3 to 6 were framed in the alternative
The jury returned a unani nious verdict of guilty against all the accused for the various offences read with section 34 IPC
The verdict of the jury was not recorded with respect to the five alternative charges against accused No 1 regarding substantive offences and against appellants with respect to various offences read with section 109 IPC
The Sessions Judge accepted the verdict of the jury and convicted them of the various offences read with section 34 PC
Their appeals to the High Court also failed
On appeal by Special Leave the appellants mainly contended that the learned Sessions Judge misdirected the jury with respect to the requirements of section 34 IPC
It was urged that the various offences were actually committed by accused No 1 that the appellants were not present when accused No 1 presented the forged railway receipts did other criminal acts and took delivery of the goods and that therefore even if they had agreed with accused No 1 for the cheating of the railway by obtaining the goods dishonestly by presenting the forged receipt
they might have abetted the commission of the various offences but could not lye guilty of those offences with the aid of section 34 IPC whose provisions do not apply in the circumstances of the case
For the applicability of section 34 against an accused it is necessary that that accused had actually participated in the commission of the crime either by doing something which forms part of the criminal act or by at least doing something which would indicate that he was a participant in the commission of that criminal act at the time it was committed
Held In the present case accused No 1 alone did the various acts which constituted the offences of which he was convicted
The appellants took no part in the actual commission of those acts
Whatever they might have done prior to the doing of those acts did not form an ingredient of the offences committed by accused No 1
They could not be said to have participated in the commission of the criminal act which amounted to those various offences
They could not be therefore held liable by virtue of section 34 IPC for the acts committed by accused No 1 alone even if those acts had been committed in furtherance of the common intention of all the three accused
Therefore the conviction of the appellants for the various offences read with section 34 IPC must be set aside
Barendra Kumar Ghosh vs The King Emperor 1929 LR 52 IA 40 Shree Kantiah Ramayya Munipalli vs State of Bombay  and Jaikrishnadas Manohardas Desai vs State of Bombay  referred to