IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.545 of 1999 Date of decision:27.7.2010 State of H.P. ... Appellant Versus Om Parkash … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Rajesh Mandhotra, Dy.Advocate General. For the respondent: Mr.Anup Chitkara, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 3.7.1999 passed by the learned Sessions Judge, Chamba Division, Chamba, in Criminal Appeal No.4 of 1998 whereby he allowed the appeal filed by the respondent-accused and set-aside the judgment dated 14.1.1998 passed by the learned Chief Judicial Magistrate, Chamba in Criminal Case No.542-I-99-II of 1993 convicting the accused of having committed an offence punishable under Section 409 IPC and sentencing him to undergo rigorous imprisonment for two years and to pay fine of 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 Rs.5000/- and in default of payment of fine to undergo simple imprisonment for further period of three months. The undisputed facts are that the accused was posted as Postmaster in Branch Post Office, Rathiar in the year 1989. It is also not disputed that one PW-16 Munshi Ram purchased National Saving Certificates worth Rs.5000/- from that post office. The accused was supposed to send the account form and cash of Rs.5000/- to the sub-post office Sultanpur. Case of the prosecution is that on 21.11.1989, the accused dispatched a sealed mail bag through Extra Departmental Runner Machlu Ram, PW-3 who handed over this bag to Branch Postmaster at Mangla Sh.Chaman Singh PW-4. There another bag received from Branch Post Office Kupara was received. All these bags were sent to sub post office Sultanpur through Extra Departmental Runner Raj Kumar PW-7. At Sultanpur the branch postmaster, sub-post office Sultanpur PW-6 Jaram Chand opened the bag. He found that the sealed mail bag of branch post office Rathiar was empty and did not contain the daily account or any cash. Therefore, he made a reference to the accused. On receipt of this reference the accused went to the sub post office, Sultanpur and 3 told PW-6 Jaram Chand that he had remitted the daily account along with cash amounting to Rs.5000/- together with application form of PW-16 Munshi Ram but nothing was available in the bag. PW-6 Jaram Chand reported the matter to the Superintendent Post Offices, Chamba who in turn directed Amar Singh Complaints Inspector to inquire into the matter. Thereafter, a report was lodged against the accused in the Police Station, on the basis of which FIR was lodged. The learned trial Court convicted the accused. An appeal was filed by the accused which as stated above, was allowed by the learned Appellate Court. The main ground which weighed with the learned lower Appellate Court was that it was incumbent upon the prosecution to prove that the bag was not tampered with and that when the bag was opened it bore the same seal which had been affixed by the accused. The learned Appellate Court had also found that the mail bag in question was never taken into possession by the police during the investigation. However, only a cord and the seal allegedly fixed on the bag were taken into possession. The cord label is PW1/I, Cord is PW1/A and seal label is Ext.PW-1/G. PW-1 however admitted in cross 4 examination that it was not possible to decipher what was written on the seal Ext.PW-1/G and it can only be said that it pertains to Rathiar branch. This also she stated on the basis that the seal cord was of Rathiar. She admitted in cross examination that the seals issued to the post offices are legible and it is not difficult to read the same. Admittedly, the bag went through many heads. It was first carried by PW-3 Machlu Ram. It was also handed over to PW-4 Chaman Singh, branch postmaster who prepared a mail bag of his own post office and then packed the mail bags of all the three post offices in one transit bag and sealed it with the seal of his own branch post office seal and sent the same to sub post office, Sultanpur through PW-7 Raj Kumar. PW-10 Amar Singh, Extra Departmental Runner in Kapara post office has also deposed that he handed over a mail bag of branch post office Kapara to branch post office Mangla and all the bags of three stations i.e. Mangla, Kapara and Rathiar were put in a transit bag and sent to Sultanpur. At Sultanpur the bag was opened. The prosecution should have proved that the seal which was broken at Sultanpur was the same which had been affixed by the accused at Rathiar. This it has 5 miserably failed to prove. Therefore, the chance of the bag having been tampered with during this transit period cannot be ruled out. Another reason to doubt the prosecution case is that PW-3 Machlu Ram and PW-4 Chaman Singh have admitted in their cross examinations that after departmental inquiry some amount was recovered from them. If they were not at fault why was any recovery made from them. True it is that Rs.5000/- was found missing but the prosecution has failed to prove beyond reasonable doubt that it was the accused who pilfered or mis-appropriated this amount. The possibility of this amount having been pilfered on the way by some other person cannot be ruled out. In view of the above discussion, the learned lower Appellate Court was justified by giving benefit of doubt to the accused. We find no error in the judgment passed by the learned lower Appellate Court. The appeal is dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. July 27, 2010 ( Sanjay Karol ), J. PV