JUDGMENT : V. Gopalaswamy, J. - This revision is preferred against the judgment dated 2-3-1984 of the learned Sessions Judge, Keonjhar, in Criminal Appeal No. 18 of 1983 dismissing the appeal and confirming the order of conviction and sentence passed by the Subordinate Judge-cum-Judicial Magistrate, First Class. Anandapur, in ICC No. 159 of 1980 on his file convicting the Petitioner u/s 406. Indian Penal Code and sentencing him thereunder to undergo rigorous imprisonment for one year. 2. The prosecution case may be briefly stated thus: On 1-8-1976 as the Forest Guard (p.w. 2) found that 1,446 pieces of laterite stones were illegally removed by somebody and stacked at Purunapani Stone Quarry in village Dhenka (of Soso P. S. in the district of Keonjhar), he seized the same under the seizure list (Ext. 2) and kept them in the zima of the Petitioner under the zimanama Ext. 1 and initiated Forest U. D. Case No. 74 of 1976-77. As the culprit who thus illegally removed the stones could not be traced, the U. D. Case had to be dropped and the D.F.O. ordered on 11-2-1977 for the sale of the seized stones in public auction finding the upset price at Rs. 450/-. Several notices were issued to the accused-Petitioner to return the stones, but he did not return the same though he promised to do so. On 12-9-1980 p.w. 3 gave the notice Ext. 4 to the Petitioner demanding of him to return the stones but as he failed to do so the complaint case ICC No. 159 of 1980 was filed. 3. The defence plea is one of denial. No witness was examined on behalf of the defence. 4. The Prosecution has examined in all four witnesses besides exhibiting some documents, to prove its case p.w. 2 is the Forest Guard who seized the stones and kept them in the zima of the Petitioner. P. W. 1 was the Forester on 1-8-1976 and he was informed by p.w. 2 about the illegal removal of laterite stones by an unknown culprit. P. w. 3 was the Forester, Bhadrak, on 13-10-1980 and he claims to have taken Over the charge of the case from p.w. 1. P. w. 4 is a witness to the seizure. 5. The evidence of P.Ws. 1 to 4 merits careful consideration to find out if the charge u/s 406. P. w. 3 was the Forester, Bhadrak, on 13-10-1980 and he claims to have taken Over the charge of the case from p.w. 1. P. w. 4 is a witness to the seizure. 5. The evidence of P.Ws. 1 to 4 merits careful consideration to find out if the charge u/s 406. Indian Penal Code is brought borne to the accused. P. w. 1 Padmanav Sahu was the Forester to whom p.w. 2 reported about the seizure of 1.446 pieces of laterite stones on. 1-8-1986. It is ill: the evidence of p.w. 1 that regarding illegal removal of the stones. Forest U. D. Case No. 74/76-77 was initiated. It is these 1,446 paices of stones, seized by p.w. 2, which were kept in the zima of the accused Petitioner. P. w. 1 admitted in cross-examination that these stones were given in the zima of the accused at the place where they bad been seized, but they were not transferred to the house of the accused. P. w. 1 further admitted that no payment was made to the accused for taking care of these stones. It is in the evidence at p.w. 1 that there is a road near the place where the stones were kept and many people pass that way. The evidence of p.w. 1 shows that as the place where the stones were stacked is an open place, it is difficult to check the removal of stones or the missing of stones. P.w.1 candidly admits that due to rain some of the Mankada stones might have melted away and presently he cannot say if the stones are at the spot or not. On further cross-examination p.w. 1 stated that he did not take any step to keep the stones given in the zima of the accused well protected, as it was not necessary for the Forest Department to do so. On a careful scrutiny of the evidence of p.w. 1 it is seen that there is nothing in his evidence to suggest that the accused has misappropriated the stones kept in his zima. 6. P. w. 2 is the Forest Guard who on 1-8-1976 detected the illegal removal of 1.446 pieces of Mankada stones by some unknown culprit and after seizing the same kept them in the zima of the accused-Petitioner. 6. P. w. 2 is the Forest Guard who on 1-8-1976 detected the illegal removal of 1.446 pieces of Mankada stones by some unknown culprit and after seizing the same kept them in the zima of the accused-Petitioner. P. w. 2 admitted in cross-examination that since that day, i.e., 1-8-1976, till date of his deposition he has not gone to the spot. He frankly admits that he cannot say if the stones are presently there or not. It is in the evidence of p.w. 2 that the zimanama was prepared at the stone quarry and that the stones were kept at 3 to 4 places in the quarry. The evidence of p.w. 2 shows that the stones were kept in an open place and there is a road nearby and people pass that way. P. w. 2 stated that another Forest Guard Mohammed Sami was with him on the relevant occasion. But the said Mohammed Sami is not witness in the case. It is in the evidence p.w. 2 that the house of the accused is about two kilometres from the spot. The evidence of p.w. 2 also does not disclose anything in support of the prosecution allegation that any of the stones said to have been kept in the zima of the accused was 'misappropriated by him. 7. P. w. 3 G. B. Das was the Forester, who states that he took over charge of the case from p.w.1. The evidence of p.w. 3 shows that he issued a notice on 12-9-1980 to the accused directing him to produce the stones and that in spite of the notice the accused did not produce the stones. P. w. 3 admitted in cross-examination that he has no personal knowledge regarding the case and he did not go to the spot for enquiry. He stated their he did not have any contact with the accused prior to the occurrence. He also admits that the stone Quarry in question is situated in an open place. P. w. 4 Bhaskar Bal was examined as an independent witness. He stated in his chief-examination that he has not seen any stones being given in the zima of the accused but as the Forester (p.w. 1) stated that some stones were given in the zima of the accused and asked him to sign in the zimanama he signed therein. P. w. 4 Bhaskar Bal was examined as an independent witness. He stated in his chief-examination that he has not seen any stones being given in the zima of the accused but as the Forester (p.w. 1) stated that some stones were given in the zima of the accused and asked him to sign in the zimanama he signed therein. He further stated in cross-examination that the zimanama was not prepared in his presence. Hence, it is seen that the evidence of p.w. 4 is in no way helpful to the prosecution to prove the allegation that the accused misappropriated the stones said to have been kept in his zima. In his evidence even p.w. 3 does not state categorically and unequivocally that the Appellant had misappropriated the stones in question. . 8. The oral and documentary evidence placed on record reveals some interesting features of the prosecution case. The prosecution evidence shows that 1446 pieces of laterite stones which were seized in the U. D. Case No. 74/76-77, were kept in the zima of the accused on 1-8-1976 under the zimanama Ext. 1. Admittedly the stones so seized' were not collected at one place but were lying scattered at 3 to 4 places in the quarry and it was of these stones that the zima was given to the accused. It is not the prosecution case that physical delivery of those stones was given to the accused. Admittedly the stones were not carried to the house of the accused after he kept them in his zima but the same were allowed to lie at the Stone Quarry, scattered in 3 or 4 places in the manner they were found at the time of their seizure. It is in' the evidence that,the house of the accused is about 2 K. Ms. from the place of seizure, that is the Stone Quarry in question. It is also not disputed that nothing was paid to the accused for taking care of these stones. There is nothing in the evidence to suggest as to the place where the accused, was expected to deliver the stones and as to the means of carrying the same to that place. It is also not disputed that nothing was paid to the accused for taking care of these stones. There is nothing in the evidence to suggest as to the place where the accused, was expected to deliver the stones and as to the means of carrying the same to that place. If 1446 stones were to be carried and delivered at a place away from the place of seizure, it necessarily involves some amount of expenditure and it is not clear from the prosecution evidence as to why the accused should bear such expenses. None of the P.Ws. have categorically stated on oath that the accused had misappropriated these stones kept in his zima or carried them away from the place of seizure. Even in the prosecution report lodged by G. B. Das (p.w. 3) regarding the nature of the offence it was merely stated that the custodian meaning thereby the accused did not produce the seized property before him. From Ext. 6 it is seen that as early as on 14-10-1976 a proposal was made to drop the proceeding and to put the stones to public auction fixing upset price of Rs. 450/-. The D. F. O. passed orders on 11-2-1977 to sell the stones by public auction. It is surprising as to why the direction of the D. F. O. was not carried out till the year 1980 and there is explanation regarding it from the side of the prosecution. The stones seized in the U. D. Case were lying at the Quarry even after they were kept in the zima of the accused as revealed from the prosecution evidence. So the stones could have been auctioned at the place of seizure itself. The very fact that in spite of the order dated 11-2-1977 of the D. F. O. to put the stones to public auction the same was not carried out even till the year 1980 is itself a suspicious feature of the prosecution case. 9. What all the prosecution could satisfactorily prove in this case is that 1446 stones seized in the U. D. Case No. 74/7677 were kept in the Zima of the accused on 1-8-1976. Normally entrustment will arise whenever something, whether it be money or any other thing, is given to, some person with some direction as to how it should be dealt with. Normally entrustment will arise whenever something, whether it be money or any other thing, is given to, some person with some direction as to how it should be dealt with. In the present case there is absolutely no evidence regarding any positive direction given to the accused at the time when 1446 laterite stones lying scattered at the quarry were kept in his zima. The following. observations of the Supreme Court in Janeshwar Das Aggarwal Vs. State of Uttar Pradesh, are considered material and relevant for the purposes of the present case and hence quoted below: ... Even assuming that some sort of entrustment was there, is absolutely nothing in this case to show that the appenant had misappropriated the goods from the godowns which were found to be short, particularly because the godowns being open the goods could have been pilfered by anyone else without the knowledge of the Appellant. Before a conviction u/s 409, Indian Penal Code can be recorded, the prosecution must prove two essential facts: (1) the factum of entrustment and (2), the factum of misappropriation of the entrusted articles. Even if it be' assumed that entrustment was proved in this case, there is absolutely no evidence to show, either direct or circumstantial, that the Appellant had misappropriated any of the articles in the godowns. As the godowns were open and accessible to all and sundry, the possibility of the goods having been pilfered or stolen away by others cannot be excluded. The High Court was, therefore, clearly wrong ill holding that as the Appellant has not given any applanation for the shortage, he must be presumed to have misappropriated the articles kept in the godowns. In the present state of evidence, no such legal inference could be drawn... Admittedly the stones were lying scattered in an open place at the Stone Quarry, situated close to the public road and thus the place was accessible to one and all. The stones lying in an open place were exposed to rain. It is in the evidence that the house of the accused was at a distance of about 2 K. Ms. from the Stone Quarry in question. Admittedly the Forest Department did not take any steps to keep watch over the stones or to protect the same from getting damaged due to weather conditions. It is in the evidence that the house of the accused was at a distance of about 2 K. Ms. from the Stone Quarry in question. Admittedly the Forest Department did not take any steps to keep watch over the stones or to protect the same from getting damaged due to weather conditions. On a careful consideration of the evidence placed on record it is seen that,prosecution has not been able to prove satisfactorily the factum of misappropriation of the stones entrusted to the accused on 1-8-1976 and' thus one of the essential ingredients of criminal breach of trust is not established by the prosecution and so the charge u/s 406, Indian Penal Code must fail. 10. Both the Courts below have arrived at the finding of the guilt of the Petitioner on a superficial consideration of the evidence on record without applying their minds to the nature of the evidence that would be necessary, in the facts of the present case, to establish the factum of dishonest misappropriation alleged to have been committed by the accused. It is settled position of law that appellate Court's concurrence with a patently wrong finding of guilt, does not render it immune from interference, if acceptance, of such a finding by the revisional Court also would result in miscarriage of justice. As the prosecution failed to bring home to the accused the charge u/s 406, Indian Penal Code it would result in travesty of justice if the conviction of the Petitioner is allowed to stand. 11. In the result, the order of conviction and sentence passed by the Courts below against the Petitioner u/s 406, Indian Penal Code is hereby set aside and accordingly, the revision is allowed. Final Result : Allowed