LexKRISHAN KUMAR versus THE UNION OF INDIA
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452 SUPREME COURT REPORTS [1960(1)) x959 Malanga who was a Ohandala. Vishva Mitra was a. v G'. Kshtriya and became a Brahman. Hinduism might · : '" have become static at one stage but its modern history Dippala ~"''Do,. shows that this is not so now and it would not be •Kd Othm wrong to say that caste in Hinduism is not dependent upon birth but on actions. The whole theory of karma K•P..• J. is destructive of the claim of caste being dependent upon birth.. I959 May ar. In.my opinion Mr. Dippala Suri Dora had by his actions raised himself to the position of Kshtriya and he was no longer a member of the Scheduled Caste or Tribe and on that ground also his election cannot be supported. I would therefore allow this appeal, set aside the order of the High Court and restore that of the Tribu- nal. The appellant will be entitled to costs of this Court as well as of the Courts below. ORDER. In view of the majority judgment of the Court the appeal is dismissed with costs in favour of Respondent No. I. .A.:p:pe,al, diBrnissed. KRISHAN KUMAR v. THE UNION OF INDIA (JAFER IMAM and J. L. KAPUR, JJ.) Criminal Trial-Misappropriation-Servant receiving goods but failing to account to master-Proof of conversion, if necessary- F alse explanaJ.ion by servant, whether can be taken into consi.Iera· tion-Prevention of Cormption, r947 (II of r947), s. 5(r)(c). The appellant was employed as an Assistant Store Keeper in the Central Tractor Organisation, Delhi. He took delivery of a consignment of iron and steel received by rail for the Organisa- tion and removed them from the railway siding. The goods did not reach the Organisation. The appellant absented himself from duty on the following days and when he was called he gave a false explanation that he had not taken delivery of the goods. The appellant was tried for misappropriation of the goods, under s. 5(1)(c} of the Prevention of Corruption Act, 1947. At the S.C.R. SUPREME COURT REPORTS 453 trial, he took the defence that he had moved the goods to another I959 siding but this was not accepted and the appellant was convicted. The appellant contended that his conviction was bad as the Krishan Kumar prosecution had failed to prove that he converted the goods to v. his own use and did not apply them to the purpose for which he The Union of Indi• had received them. Held, that the appellant had been rightly convicted. The offence of misappropriation was established when the prosecution proved that the servant received the goods, that he was under a duty to account to his master and that he had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it was for him to explain the loss; it was not for the prosecution to eliminate all possible defences or circumstances which may exonerate him. The giving of a false explanation was an element which the Court could take into consideration in determining the guilty intention. Harakrishna Mehtab v. Emperor, A.I.R. (r930) Pat. 209; Larnier v. Rex, (r9r4) A.C. 22r ; Emperor v. Santa Singh, A.I.R. (1944) Lah. 338; Emperor v. Chattur Bhuj, (r935) l;L.R. Pat. 108; Rex v. William, (1836) 7 C. & P. 338 and Reg v. Lynch, (r854) 6 Cox. C. C. 445, referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 114 of 1957. Appeal by special leave from the judgment and order dated December 6, 1955, of the Punjab High Court (Circuit Bench) Delhi in Criminal App13al No. 25-D of 1953, arising out of the judgment and order dated August 27, 1953, of the Court of the special judge at Delhi in Criminal Case No. 3 of 1953. R. L. Anand, and S. N. Anand, for the appellant. H. J. Umrigar, and R. H. Dhebar, for the res- pondent. 1959. May 21. The Judgment of the Court was delivered by KAPUR J.-This appeal by special leave is brought against the judgment and order of the High Court of the Punjab confirming the order of conviction of the appellant under s. 5(l)(c) of the Prevention of Corrup- tion Act, 1947 (II of 1947) (hereinafter referred to as the Act). The High Court reduced the sentence of the appellant to nine months' rigorous imprisonment. Kapur]. 454 SUPREME COURT REPORTS [1960(1)] r959 The appellant was employed as an Assistant Store Keeper in the Central Tractor Organisation at Delhi Krishan Kuma, d h d an amongst ot er uties his duty was the taking of The Uni;; of India delivery of consignment
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