26 February 1964
Supreme Court


Case number: Appeal (crl.) 150 of 1961






DATE OF JUDGMENT: 26/02/1964


CITATION:  1965 AIR  264            1964 SCR  (6) 920

ACT: Criminal Trial-Whether the person must be physically present at  the actual commission of the crime-Acts done by  several persons in furtherance of common intention-Essence of-Indian Penal Code, 1860 (45 of 1860), s. 34.

HEADNOTE: In a trial by jury the appellants were jointly charged along with -accused No. 1 with an offence punishable under ss. 471 and 467 read with s. 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 s. 467 read with s.  34  I.P.C.  on account of accused No. 1 having forged the bill portion.  In the  alternative,  accused No. 1 was charged  under  s.  467 I.P.C.  and  the appellants were charged under s.  467  read with  s. 109 I.P.C. 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 s. 34 I.P.C. 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  s. 109 I.P.C. The Sessions Judge accepted the  verdict of the jury and convicted them of the various offences  read with s. 34 P.C. 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 s. 34 I.P.C. 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 s. 34 I.P.C. whose  provisions  do not  apply  in  the  circumstances of  the  case.   For  the applicability  of s. 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  s.  34 I.P.C., 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 s. 34 I.P.C. must be set aside. Barendra  Kumar  Ghosh v. The King Emperor, (1929)  L.R.  52 I.A. 40, Shree Kantiah Ramayya Munipalli v. State of  Bombay [1955]  1 S.C.R. 1177 and Jaikrishnadas Manohardas Desai  v. State of Bombay [1960] 3 S.C.R. 319, referred to. 922

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal 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. S. Mohan Kumarmangalam,    R.  K. Garg and M. K. Ramamurthi, for the appellant (in Cr.  A. No. 150/61). 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  E.R.  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,  P.W.I  and  Shridhar, P.W.  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. 1,500/-. 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 ss. 471 and  467 read  with  s. 34 I.P.C. 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 s.  467  read with s. 34 I.P.C. on account of accused No. 1 having  forged the  bill  portion.  In the alternative, accused No.  1  was charged  with the offence under s. 467 I.P.C. and the  other accused Nos. 2 and 3 were charged under s. 467 read with  s. 109  I.P.C.  for  having  abetted  accused  No.  1  in   the commission of that offence. 924 Charges   Nos.  3  to  6  were  similarly  framed   in   the alternative,  i.e.,  in  the first instance  all  the  three accused  were charged with certain offences read with s.  34 I.P.C. 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 s. 109 I.P.C. 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 s. 34 I.P.C. 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 s. 109 I.P.C. The Sessions Judge accepted the  verdict of the jury and convicted them of  the  various offences  read with s. 34 I.P.C. 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  s. 34 I.P.C. 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 s. 34 I.P.C. whose provisions,  it is  contended,  do  not apply in the  circumstances  of  the ’Case.  It is contended that for the applicability of s.  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  v.  The   King Emperor(1)  and Shreekantiah Ramayya Munipalli v. The  State of Bombay(2). 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 s. 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 s. 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 case(2), three persons were convicted  on several  charges  under s. 409 read with s.  34  I.P.C.  for committing  criminal  breach  of  trust  of  certain   goods entrusted  to them as government servants in charge  of  the stores depot (1)  L.R. 52 I.A. 40. (2)  [1955] 1 S.C.R. 1177. 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 s. 34 I.P.C. 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 case(1) 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, P.W. 1. (1)  [1955] 1 S.C.R. 1177.  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 v. The State of Bombay(1), Shreekantiah’s  case(2)  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 s. 409 read with s. 34 I.P.C. 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  s.  34  I.P.C.  Shah  J., delivering the judgment of the Court, said at p. 326:               "But  the essence of liability under s. 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 s.               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  s.  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) [1960] 3, S.C.R. 319. (2) [1955] 1 S.C.R. 1177. 928               done at different times and places.  In  Shree               Kantiah’s  case(1), 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 case(1) in so far as they deal  with               s.  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 s. 34  I.P.C., 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 s. 34 I.P.C.  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)  [1955] 1 S.C.R. 1177. 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- mitted,by 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.               2.    Accused  No.  2  deals  in   non-ferrous               goods.               3.    Accused No. 2 went with Baburam  Gavade,               P.W.  1,  a clearing agent,  on  February  17,               1959, to see the goods.               4.    The  godown  register showed  the  angle               irons  to be received in the account  of  Shiv               Prasad Bimal Kumar and Pyare Lal, accused  No.               2.               -5.  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.               6.    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 was,made on receipt  of               Exhibit Z-8 from .lm0               134-159 S.C.-59               930               accused No. 1 when the last lot was  delivered               at the godown on February 18.               4.    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 c/o  M/s.   Sheopershad               Bimal Kumar, Bombay.               1.    RR.  No. 43351, dated 4-2-59  Ashoknagar               to Carnac Bridge.               2.    RR.  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.  1,5001/-  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 C/o’.   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  ’C/o’  has  been written at an unusual place.  In ordinary writing, it should have   been  in  line  with  the  latter  expression   ’M/s. 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   M/s. 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,  P.W.  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, i.e.,  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  c/o  M/s. 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  a/c 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 s. 3,  I.P.C.



to  those offences read with s. 109 I.P.C., and mainta.  the sentences. Appeal  No.  185  allowed  at,  Appeal  No.  150   dismisses Conviction altered and sentence maintained. 936