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2008 DIGILAW 2 (RAJ)

State of Rajasthan v. Vad Ram

2008-01-02

MAHESH CHANDRA SHARMA

body2008
JUDGMENT 1. - Heard learned Public Prosecutor for the State and the learned counsel for the respondent. 2. This appeal is directed against the order dated 25.6.1986 passed by the learned Additional Sessions Judge No. 1, Alwar, in case No. 11/1985 in which he has acquitted the accused respondent (Yad Ram Sharma) for the offence under Section 409 IPC. 3. The necessary facts giving rise to this appeal in brief are as follows : Sh. D.D. Shrivastav (P.W.3) Inspector, Sub Post Office Rajgarh (Alwar) had inspected the post office early hours in the morning of 20.9.74 and checked the cash book, tickets etc. and found Rs. 4259 & 49 paisa were missing. But the accused respondent had deposited the whole amount on the same day which are available in Ex.P2. 4. After informing to the higher authorities of his department, on 26.5.1975 he lodged a First information Report bearing No. 63/74 (Ex.P-24) in police station Rajgarh, Alwar. Upon the aforesaid report, the police registered a case under Section 409 IPC. 5. Thereafter a challan was filed before the learned Magistrate under Section 409 IPC. Charges were framed for the offence under Section 409 and it was read over and explained to the accused respondent. The accused respondent who pleaded not guilty and demanded for trial. 6. During trial, the prosecution examined as many as 9 witnesses and got exhibited some documents. Thereafter the statement of accused respondent recorded under Section 313 Cr.P.C. 7. After completing the trial, the learned Munsif & Judicial Magistrate 1st Class Rajgarh (Alwar) has sentenced the accused respondent for 6 months Rigorous Imprisonment and also imposed a fine of Rs. 200/- and in default of payment of fine, he further undergo one month rigorous imprisonment. 8. Against the aforesaid order and judgment dated 13.10.1984 passed by the learned Munsif & Judicial Magistrate Ist Class Rajgarh, the accused respondent had filed an appeal before the learned District Sessions Judge No. 1, Alwar and the same was transferred to Additional Sessions Judge No. 1, Alwar. 9. The learned Addl. Sessions Judge No. 1 Alwar after hearing both the parties acquitted the accused respondent from the offence under Section 409 IPC. 10. Aggrieved by the aforesaid judgment and order dated 25.6.1986 passed by the learned Addl. Sessions Judge No. 1 Alwar, the State Government has preferred this appeal. 11. 9. The learned Addl. Sessions Judge No. 1 Alwar after hearing both the parties acquitted the accused respondent from the offence under Section 409 IPC. 10. Aggrieved by the aforesaid judgment and order dated 25.6.1986 passed by the learned Addl. Sessions Judge No. 1 Alwar, the State Government has preferred this appeal. 11. On 15.10.1986, this Court has passed the following orders: "Heard learned Public Prosecutor. Leave is granted. This may be registered as an appeal. Admit. Accused respondent may be summoned by bailable warrant for a sum of Rs. 1,000/-." 12. In this appeal it has been submitted by the learned Public prosecutor that the learned Sessions Judge has not considered the statement of prosecution witnesses properly and should have been believed by the trial judge. Thus, the impugned judgment and order are erroneous one and liable to be set aside. 13. On the other hand, Mr. P.C. Jain, the learned counsel for the accused respondent has submitted that the impugned judgment and order passed by the learned Addl. Sessions Judge No. 1 Alwar are based on the correct appreciation of evidence and after giving cogent reason, the learned Sessions Judge has acquitted the accused respondent of the charges framed against him and thus no interference is called for in the impugned order and judgment. 14. It is also contended by Mr. P.C. Jain learned counsel for the accused respondent that on the same day the respondent has deposited the amount, so there is no misappropriation of the amount. It is also contended that the prosecution witness (P.W.4) Prabhu Dayal who has been declared hostile and the rest of the witnesses P.W.5 Manohar Lal, P.W.6 Gyarsi Ram, P.W.8 Karan Singh and P.W.9 Radhey Shyam are the formal witnesses. He further contended that it was the duty of the prosecution to prove the case against the accused respondent that he has misappropriated the said amount. 15. In the last Mr. Jain has argued that the prosecution has not been able to show that the accused respondent dishonestly misappropriated or converted the said amount found to his own use or dishonestly used or disposed of it. Hence, the accused respondent cannot be held guilty of offence under Section 409 IPC. He has also relied upon the judgment in the case of Sardar Singh v. State of Haryana, reported in AIR 1977 SC p.436 . Hence, the accused respondent cannot be held guilty of offence under Section 409 IPC. He has also relied upon the judgment in the case of Sardar Singh v. State of Haryana, reported in AIR 1977 SC p.436 . The relevant portion of the aforesaid judgment runs as under : "2. The only question which arises for consideration in this appeal is whether the appellant could be said to have committed criminal breach of trust in respect of the receipt-book. There can be no doubt and that is amply proved by the oral evidence on record read with the list Ex.PAQ, that the receipt-book was entrusted to the appellant in his capacity as patwari on November 6, 1967 when he took charge of his post. It must equally be taken to be established that the receipt book was not in the room of the appellant when the lock was broken open and charge was forcibly taken from him on December 29, 1967. Vide Ex.PF and PG. The receipt-book was thus not returned by the appellant though he was bound to do so at the time of handing over of charge to his successor. But from this it does not necessarily follow that the appellant committed criminal breach of trust in respect of the receipt-book. Section 409 can be invoked only it is can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed criminal breach of trust in respect of that property. The offence of criminal breach is defined in Section 405 and an essential ingredient of this offence is that the accused being in any manner entrusted with property or with dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust. Here, as we have already pointed out, the appellant was admittedly entrusted with the receipt-book or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt-book or converted it to his own use or dishonestly used or disposed of the receipt-book. Here, as we have already pointed out, the appellant was admittedly entrusted with the receipt-book or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt-book or converted it to his own use or dishonestly used or disposed of the receipt-book. It is quite possible that the appellant might have lost or mislaid the receipt-book and hence he might have been unable to return it to the superior authorities. The section requires is something much more than mere failure or omission to return the receipt-book. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receipt-book to his own use or dishonestly used or disposed of it. That, we are afraid, the prosecution has not been able to do in the present case. We are, therefore, of the view that the appellant was wrongly convicted under Section 409. 3. We accordingly allow the appeal, set aside the order of conviction and sentence recorded against the appellant and acquit him of the offence under Section 409 of the Indian Penal Code." 16. In the light of the above citation, it is crystal clear that in the instant case Section 409 IPC can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed a criminal breach of trust in respect of that property/amount. Hence the case of the accused is squarely covered by the aforesaid judgment. 17. The Court attention was drawn on the judgment of the Hon'ble Supreme Court in Umrao v. State of Haryana, reported in 2006(2) WLC (SC) Cri. 98 : 2006 SCC (10) 136 . Wherein their Lordships of Apex Court as observed in para No.26 held as under: "It is now well settled that if two views are possible, the appellate court should not interfere with the judgment of acquittal passed by the court below." 18. I have heard learned counsel for both the parties and also gone through the impugned judgment and order dated 25.6.1986 passed by the learned Addl. Sessions Judge No. 1, Alwar. 19. This appeal has come up for hearing before this Court after expiry of a period of approximately 33 years from the date of occurrence. It has also been informed by Mr. Sessions Judge No. 1, Alwar. 19. This appeal has come up for hearing before this Court after expiry of a period of approximately 33 years from the date of occurrence. It has also been informed by Mr. P.C. Jain learned counsel for the accused respondent that the accused has retired on 31st May, 2005. In my considered opinion, the reasonings given by the learned Addl. Sessions Judge No. 1 Alwar for not relying upon the statement of prosecution witnesses cannot be said to be erroneous one. 20. Looking to the evidence just discussed above, it can easily be said that the prosecution has not been able to prove its case beyond all reasonable doubt against the accused respondent for the offence against which they have been charged and the learned Addl. Sessions Judge has rightly acquitted the accused respondent. I have no reason to disagree with the finding of the acquittal recorded by the learned court below as it appears to be reasonable in the facts and circumstances of the case. 21. It may be stated herein that in appeal against acquittal though powers of the High Court to reassess the evidence and to reach its own conclusion 5 are as extensive as in an appeal against an order of conviction, yet as a rule of prudence, it should always give proper weight and consideration to the views of the trial court as to the credibility of the witness, the presumption of innocence in favour of the accused, right of the accused to the benefit of any doubt and thus, High Court should not ordinarily disturb the order of acquittal. Therefore, this court does not want to interfere with the impugned judgment and order of acquittal dated 25.6.1986 passed by the learned Addl. Sessions Judge No. 1, Alwar and this appeal is liable to be dismissed. 22. For the reasons indicated herein above, the appeal filed by the State of Rajasthan fails and the same is hereby dismissed after confirming the judgment and order of acquittal dated 25.6.86 passed by the learned Addl. Sessions Judge No. 1, Alwar. The accused respondent is on bail and need not surrender. The bail bonds stand discharged.Appeal Dismissed. *******