B. BHATTACHARYA, J. ( 1 ) THIS criminal revisional application is directed against the order dated 19. 10. 2001 passed by the learned sessions Judge, the A and N Islands, at Port Blair thereby partly allowing the criminal appeal preferred by the present petitioners against an order of conviction under Section 409 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class, Mayabunder In GR Case No. 319 of 1989 (TR No. 63 of 1992 ). ( 2 ) THE petitioner No. 1 was working as Statistical Assistant in the office of Child Development Project, Middle Andaman, Rangat and the petitioner no. 2 was entrusted with the responsibility to purchase/procure and distribute biscuits to Anganwadi Centres under the Angawadi Project in the Middle Andaman area. The prosecution alleged that both the petitioners were entrusted with 60 tins of biscuits to distribute to the Anganwadi Centers. Out of those 60 tins, the petitioners kept 30 tins in the shop premises of a project Contractor (Shivakami Stores) for the purpose of misappropriation of those biscuit tins. Allegation was also made against an additional accused namely, P. Subbaiah, who was in charge of the said shop room. The police submitted charge-sheet against the petitioners and the 3rd accused alleging the offences under Sections 409/468/471/34 of the i. P. C. in the court of the learned Judicial Magistrate. 1st Class, Mayabunder. Ultimately, the learned Trial Magistrate framed charge against the petitioners under Sections 409/4f8/471/34 of the I. P. C. and separate charge was framed under Section 411 of the I. P. C. against the other accused namely P. Subbaiah. At the time of trial. prosecution examined 45 witnesses out of the list of 54 witnesses submitted with the charge-sheet. After the prosecution closed its case, the learned Trial Magistrate examined the petitioners as well as the co-accused P. Suhbaih under section 313 Criminal Procedure Code. The petitioner No 1 Abdul Hameed while being examined under section, 313 Criminal Procedure Code made inter alia, the following statements"we kept the biscuit tins at the Shivakami Stores as per instruction of CDPO namely Gin Raj Singh Thakur because there was no separate store room in CDPO's office. We told Mr. Subbaiah that we would get it on the next day and he agreed. We kept 30 tins biscuits there. We told Mr. Subbaiah that we would get it on the next day and he agreed. We kept 30 tins biscuits there. On the next day Subbaiah (the co-accused) told that the biscuits are seized and then we informed the matter to CDPO. We were implicated in a false case. "it may not be out of place to mention here that the learned Trial magistrate examined the co-accused P. Subbaiah under the same Section and in answer to the question No. 4, the said P. Subbaiah stated as follows :"ans : On relevant date at about 3 PM when the Anganwadi school was closed, the other two accused kept the biscuit tins in vamadah of my shop, and told that they would again get it on next day at 7am for distribution. " ( 3 ) AFTER hearing the arguments on behalf of the prosecution and the defence, the learned Trial Magistrate by the judgment dated June 27, 2000 acquitted the co-accused P. Subbaiah of the charge under Section 411 of the IPC but. convicted each of the petitioners under Section 409 of the IPC and sentenced each of them to simple imprisonment for three years and imposed a fine of Rs. 500/ -. The learned Trial Magistrate, however, acquitted the petitioners of the offences charged under Sections 468 and 471 of the IPC. ( 4 ) THE learned Magistrate while acquitting the co-accused P. Subbaiah came to the conclusion that nobody stated in evidence that he received those biscuit tins, dishonestly knowing those to be stolen. The said accused only kept the biscuit tins at Shivakami Stores so the mala fide motive of the said accused was not proved and the ingredient of Section 411 IPC was also not proved against him. While convicting the petitioners, the learned Trial Magistrate made the following observations :"moreover, it is admitted at the time of examination under Section 313 Criminal Procedure Code of the accused Abdul Hameed and ramanan Babu, both kept the biscuits at Shivakami Storesso, this offence is admitted by these accused persons although Hameed and Ramanan Babu stated that they kept the biscuit at Shivakami stores as per instruction of C. D. P. O. namely G. R. Singh Thakur. But this portion of their allegation against C. D. P. O. was not stated by any other evidence. But this portion of their allegation against C. D. P. O. was not stated by any other evidence. " ( 5 ) THE learned Magistrate finally concluded that the petitioners had failed to prove the aforesaid allegations against the CGPO and as such the petitioners should be held guilty of offence under Section 409 of the IPC. ( 6 ) BEING dissatisfied with the aforesaid order of conviction passed by the learned Magistrate, the petitioners preferred an appeal before the learned Sessions Judge, Port Blair being Criminal Appeal No. 5. of 2000 and by the order impugned herein, the said Court has disposed of the appeal by confirming the findings of the learned Trial Magistrate that the petiittoners were guilty of the offence under Section 409 of the I. P. C. but the terms of sentence Imposed by the learned Magistrate were modified thereby reducing the sentence of simple imprisonment to six months each with a fine of Rs. 500/- each. in default of which they were directed to undergo further ten day's imprisonment. ( 7 ) BEING dissatisfied, the petitioners have come with the instant criminal revisional application. ( 8 ) MR. N. N. Nag, learned advocate appearing on behalf of the petitioners has taken me through the judgment of the courts below and has pointed out that in the present case both the courts below erred in law in not drawing an adverse inference under Section 114 (g) of the indian Evidence Act against the prosecution for non-examination of Giriraj singh Thakur, the then CDPO, Rangat when the witness for the prosecution namely PW. 1 himself has stated that those tins were placed in the said shop room on the dictation of the said CDPO, Rangat who was also the BDO. Mr. Nag further submits that in the present case there is no direct evidence of any misappropriation of the biscuits and only because his clients placed those tins in a private shop room for the purpose of distribution of those biscuits on the next morning, they have been convicted under Section 409 of the IPC. Mr. Nag contends that if it really appears that those were kept in the said shop room at the direction of the superior officer namely the CDPO, for want of place in the office of the CDPO as it has come out in the evidence of PW. Mr. Nag contends that if it really appears that those were kept in the said shop room at the direction of the superior officer namely the CDPO, for want of place in the office of the CDPO as it has come out in the evidence of PW. 1 itself, it was the duty of the prosecution to examine the said CDPO as witness. He further submits that the learned Sessions Judge erred in law in holding that under such circumstances, it was the duly of the accused persons to call the said CDPO as their witness. He further submits that the learned Magistrate having convicted the petitioners by using their statements in answer to questions put under Section 313 criminal Procedure Code, wherein they stated that those tins were kept in the shop room at the dictation of the said CDPO, the said Giriraj singh Thakur was the best witness to disprove the case of the petitioner. He further submits that the entire statements made by the petitioners in answer to question put under Section 313 of the Criminal Procedure code should br taken into consideration, but the learned Trial Magistrate relied upon only a part of statements namely, they put the tins in the said shop room, after excluding the other part that those were placed on the direction of the BDO. Mr. Nag, thus, prays for setting aside the conviction passed by the learned Sessions Judge. ( 9 ) MR. Saroop, learned Advocate appearing on behalf of the State has, on the other hand, submitted that in a criminal proceeding when the accused is charge-sheeted under Section 409 of the IPC, once prosecution proves entrustment of the public property and shows that those were kept in a private shop, it was the duty of the accused to explain the circumstances in which those tins were placed in the said shop room. Mr. Saroop submits that the prosecution has no duty to prove the circumstances under which those tins were seized nor has the prosecution any duty to prove the actual misappropriation. Mr. Saroop contends that in this case, biscuits could not be misappropriated due to timely action taken by the police in seizing the biscuits within few hours after those were kept in the said shop room. ( 10 ) MR. Mr. Saroop contends that in this case, biscuits could not be misappropriated due to timely action taken by the police in seizing the biscuits within few hours after those were kept in the said shop room. ( 10 ) MR. Saroop further submits that in this case, several witnesses were won over by the petitioners and the petitioners themselves not having taken any defence explaining the shifting of those tins to the said shop room, they cannot ask the court to draw adverse inference for non-examination of Giriraj Singh Thakur. Mr. Saroop further submits that it is true that prosecution tried to examine the said person but as the said BDO after retirement had gone to mainland, he could not be procured. Mr. Saroop, thus, prays for rejection of this revisional application against the concurrent findings recorded by the courts below. ( 11 ) AFTER hearing the learned counsel appearing for the parties and after going through the materials on record, I agree with Mr. Saroop that in a criminal proceeding where the accused is charged with Section 409 of the IPC, once the prosecution proves the entrustment of the Govt. property and misplacement of that property at the instance of the accused, it is for the accused to explain under what circumstances, that property was misplaced. In the present case, the first witness for the prosecution who is a peon in the CDPO's office himself asserted in examination-in-chief that the "bdo sahab" told them to keep those 30 tins of biscuits in the shop as there was dearth of accommodation. The said witness was immediately declared as hostile and was cross-examined. In cross-examination, the said witness specifically named Giriraj Singh Thakur as the CDPO-cum-BDO, Rangat. ( 12 ) IT appears from the record that though the witness was declared hostile, the State Included the said Giriraj Singh Thakur as its witness. It appears from record that summons was issued to Giriraj Singh Tahkur in the address at Rangat but the same returned and on the reverse side of the summons, the present address of Giriraj Singh Thakur was mentioned by the Process Server. Mr. Nag has pointed out that on the reverse side of the summons it is specifically stated that the present address of Giriraj singh Thakur has been described as Mahatab Bhaban, 23/483, Wazirpura, agra 282003. Mr. Nag has pointed out that on the reverse side of the summons it is specifically stated that the present address of Giriraj singh Thakur has been described as Mahatab Bhaban, 23/483, Wazirpura, agra 282003. He further points out that after such service return, a fresh summons was saved but for the reasons best known to the prosecution, the old address of Giriraj Singh Thakur was again given and as such the summons again came back. He further draws attention of this Court to older No. 75 dated 25. 1. 2000. Order No. 76 dated 15. 3. 2000 and Order no. 77 dated 1o. 5. 2000 pointing out that specific application was filed by prosecution praying for adjournment on the ground of examination of the said witness stating specifically that the said witness is a "vital one" and the adjournments were granted. Ultimately, however, the said witness not having come for the inaction of the prosecution in sending summons at the proper address inspite of knowledge, the evidence was closed and the court proceeded to dispose of the proceedings. ( 13 ) BY relying upon the aforesaid facts Mr. Nag contends that in view of those facts, the prosecution in this case cannot claim that the said giriraj Singh Thakur was not the best witness to dispel the defence whether really the tins were kept in the shop room on his direction and as such an adverse presumption should be drawn against the petitioner. ( 14 ) MR. Saroop appearing on behalf of the prosecution could not dispute the fact that after the first summons returned disclosing the correct address of Giriraj Singh Thakur in the mainland, the prosecution never sent any fresh suimmons in the said address but for the reasons best known to them sent the next summons at the old address at Rangat knowing fully well that he was not available there. The fact that the said giriraj Singh Thakur was a vital witness has been admitted by the State by filing an application for adjournment for the purpose of examining him. Therefore, in this case, the State cannot take plea that Shri Thakur was not a vital witness and that no adverse inference should be drawn. The fact that the said giriraj Singh Thakur was a vital witness has been admitted by the State by filing an application for adjournment for the purpose of examining him. Therefore, in this case, the State cannot take plea that Shri Thakur was not a vital witness and that no adverse inference should be drawn. ( 15 ) THIS court is quite conscious of the position of law that it is for the prosecution to prove the case in its own way and neither the accused nor the court can compel the prosecution to examine any particular witness. But in this case, the said principle will have no application in view of the fact that the State itself prayed for time before the learned trial Magistrate for examining Shri Thakur. Under such circumstances, unless proper explanation is given by the State what prevented the State from examining Shri Thakur, in my view, adverse inference should be drawn. More so, when adjournment has been thrice given and in spite of that the State did not even care to send summons in the correct address in spite of the knowledge of such address. In this connection, I also agree with Mr. Nag that the learned Magistrate have taken aid of a part of the statements made by the accused in answer to question under Section 313 of the Criminal Procedure Code and thus find substance in his contention that the learned Trial Magistrate erred in convicting the accused after taking into consideration only a part of the statements made by them in answer to questions put to them under Section 313 Criminal procedure Code excluding the other part. ( 16 ) AS pointed out by the Apex Court in the case of Parvinder Kaur us. Slate of Punjab, reported in AIR 1952 SC 354 , a confession must either admit in terms the offence, or at any rate, substantially" all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. Slate of Punjab, reported in AIR 1952 SC 354 , a confession must either admit in terms the offence, or at any rate, substantially" all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self-exculpatory master cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to have been confessed statement which when read as a whole is of an exculpatory character and in which the prisoner denies his guilt is not a confession and cannot be used in evidence to prove his guilt. ( 17 ) IN the instant case, the accused merely stated under Section 313 criminal Procedure Code that they kept those biscuits tins in a private shop room on the direction of the BDO. If that statement is to be considered by the court, then the entire statement should be taken into consideration. But excluding the later part, it cannot take into consideration the first part of the statement for proving their guilt. ( 18 ) I am quite alive to the position of law that there is a duty cast upon the accused person to justify the misplacement of the Government property in a proceeding under Section 409 of the I. P. C. ; but when there is evidence already on record though PW. 1 that those biscuits tins were placed in the private shop room on the direction of the BDO, that statement sufficiently shifts the onus upon the prosecution to establish such fact when such bdo is available and even figured in the witness list. ( 19 ) I, thus, find this is a fit case where conviction carnot be upheld. It is preposterous to suggest that it was the duty of the accused to examine shri Thakur as their witness. ( 20 ) MR. Saroop as a last resort submitted before this Court that if this court decides to set aside the conviction for non-production of Mr. Thakur, in that event, matter should he remanded to the learned Trial Court for giving an opportunity to bring Shri Thakur as witness. He submits that for the fault on the part of the prosecution. the order of acquittal should not be passed when the accused will not be prejudiced in any way if mr. Thakur, in that event, matter should he remanded to the learned Trial Court for giving an opportunity to bring Shri Thakur as witness. He submits that for the fault on the part of the prosecution. the order of acquittal should not be passed when the accused will not be prejudiced in any way if mr. Thakur conies in the box. ( 21 ) AFTER considering the materials on record and the fact that several witnesses were declared hostile. I although set aside the order of conviction passed by the learned Trial Magistrate as affirmed by learned Sessions judge on the ground of non-production of the best witness available namely, Shri Giriraj Singh Thakur, 1 give an opportunity to the prosecution to examine Mr Thakur as an additional witness. However, more than one adjournment will not be granted for recording his evidence and the State will immediately apply for issue of summons upon Shri Thakur. If for any reason whatsoever, the prosecution is unable to bring Shri Thakur on the date fixed, in that case, the learned Trial Magistrate will dismiss the case against the accused. If Shri Thakur appears and gives evidence, the learned magistrate will offer the accused persons to give evidence on their behalf and if the accused decide to give evidence, after giving an opportunity of giving such evidence, learned Magistrate shall dispose of the proceeding after taking into consideration the evidences already on record as well as further evidence that will be adduced. ( 22 ) IF the petitioners decide not to give evidence on their behalf, then after considering the additional evidence of Shri Thakur and the other evidence already on record, the learned Magistrate will dispose of the case after hearing the arguments of the parties. ( 23 ) AT any rate, the hearing should be concluded positively within three months from the date of giving evidence by Shri Thakur, in the event, shri Thakur comes to give the evidence; otherwise as indicated above, the proceedings should be dismissed. ( 24 ) IN the facts and circumstances of the case, there will be no order as to costs. The accused will be on bail during the trial on the existing bail bond granted by this Court. Appeal dismissed.