JUDGMENT C.R. Sarma, J. 1. The conviction and the sentence recorded in Judgment and Order, dated 09.09.2004, passed by the learned Assistant Sessions Judge, Dharmanagar, North Tripura, in S.T. 05 (NT/D) of 2004, thereby convicting the Appellants under Section 409 IRC. and sentencing them to undergo Rigorous Imprisonment (for short R.I.) for seven years and to pay a fine of Rs. 10,000/- each in default to suffer further period of R.I. for two years is in challenge in this appeal preferred under Section 374 of the Code of Criminal Procedure (for short Cr.P.C). 2. The prosecution case, in brief, as unfolded during the trial is as follows: The Appellants and 19 others were engaged as special police officers (here in after called the 'SPO') for performing duty at Ghachiram Para S.P.O Camp with effect from 12.01.2002. On the night of 22.01.2002, the Appellants along with four others fled the said camp along with seven numbers of rifles and 440 rounds of 303 ammunition from the said camp. The said arms and ammunitions were allotted to the Appellants and other S.P.Os for performing their duty. The officer-in-charge of the camp was informed about the said incident, on the same night, by the head constable Sri Anil Deb Barma and constable No. 5126, after checking the sentry post of the camp. Accordingly, the officer-in-charge of the camp namely, S.I. Satish Deb Barma, loged an F.I.R with the officer-in-charge, Kanchanpur police station, informing the police about the missing of the said persons along with the arms and ammunitions aforesaid. On receipt of the said F.I.R., police registered a case and launched investigation into the case. During the investigation, police seized some life cartridges and 6 numbers of .303 rifles along with some other articles. Police also arrested the Appellants along with another accused, namely, Sri Pradip Reang. At the close of the investigation, charge sheet was submitted against all the seven persons including the Appellants namely, Kathin Rai Reang, Kiranjoy Reang and Dhaneswar Reang for the offences under Section 120(B)/121/409/380/34 I.P.C. 3. Police also arrested the Appellants along with another accused, namely, Sri Pradip Reang. At the close of the investigation, charge sheet was submitted against all the seven persons including the Appellants namely, Kathin Rai Reang, Kiranjoy Reang and Dhaneswar Reang for the offences under Section 120(B)/121/409/380/34 I.P.C. 3. The offences being exclusively triable by the Court of Sessions, the case was committed to the court of the Sessions and the learned Assistant Sessions Judge framed charges against the Appellants Sri Kathin Rai Reang, Sri Kiranjoy Reang and Sri Dhaneswar Reang for the offences under Section120(B)/121/409/349/380/34 read with Section 309 I.P.C. Charge was also framed against Sri Pradip Reang for the offences under Section 120(B)/121/409/380/34 I.P.C. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. Their plea was a denial one. Other three accused persons being absconders, charge could not be framed against them. 4. In order to bring home the guilt to the accused persons, the prosecution examined as many as 10 (ten) witnesses and exhibited 7 (seven) documents, which were marked as Exhibit P/1 to Exhibit P/7. 5. At the close of the evidence for prosecution, the accused persons were examined under Section313 Code of Criminal Procedure They denied the allegations and declined to adduce evidence. 6. Considering the evidence on record, the learned Assistant Sessions Judge found the present Appellants guilty of the offence under Section 409 I.P.C. Accordingly, they were convicted under Section 409 I.P.C. and sentenced as aforesaid. For want of sufficient evidence, accused Sri Pradip Reang was acquitted and set at liberty. 7. Being aggrieved by the said conviction and sentence, the Appellants have come up with this present appeal under Section 374 Code of Criminal Procedure. 8. I have heard Mr. R. Datta, learned Counsel, appearing for the Appellants and Mr. R.C. Debnath, learned Special Public Prosecutor appearing for the State-Respondent. 9. Mr. 7. Being aggrieved by the said conviction and sentence, the Appellants have come up with this present appeal under Section 374 Code of Criminal Procedure. 8. I have heard Mr. R. Datta, learned Counsel, appearing for the Appellants and Mr. R.C. Debnath, learned Special Public Prosecutor appearing for the State-Respondent. 9. Mr. Datta, learned Counsel appearing for the Appellants submitted that the learned Assistant Sessions Judge failed to appreciate the evidence on record in its proper perspective and committed illegality by convicting the accused persons for the offence under Section 409 I.P.C. without arriving at any finding regarding entrustment of the property i.e. the arms and ammunitions, which was an essential ingredient for the offence under Section 409 I.P.C. It is also submitted, on behalf of the Appellants, that accused persons are in custody for more than 6 years without substantive evidence against them. 10. Controverting the said argument, advanced by the learned Counsel for the Appellant, Mr. Debnath, the learned Special Public Prosecutor submitted that the learned Trial Judge rightly held the accused persons guilty of the offence under Section 409 I.P.C., on the basis of the oral evidence as well as the documents produced by the learned Public Prosecutor at the time of hearing. 11. In order to appreciate the counter arguments, advanced by the learned Counsels, appearing for the parties, and to examine the correctness of the impugned judgment and order, I feel it appropriate to recapitulate, in brief, the evidence on record as follows: Sri Satish Debnath deposing as P.W. 1, who was the in-charge of the S.P.O. camp, Gachiram Para, deposing as P.W. 1, stated that the accused-Appellants and others were appointed as Special Police Officers and that they were engaged for duty after allotting arms and ammunition to them for the said purpose. According to this witness, on being informed by the Habildar, Sri Anil Debbarma and Constable 1126, Sri Haradhan Saha regarding missing of the said persons along with the arms and ammunition, he called all the jowans for the purpose of counting and found that seven jowans including the Appellants were found missing, along with their respective arms and ammunition, from the camp. Exhibiting the F.I.R., as Exhibit No. P/1, this witness stated that he lodged the information with the police informing the incident. Exhibiting the F.I.R., as Exhibit No. P/1, this witness stated that he lodged the information with the police informing the incident. In his cross-examination, this witness denied the suggestion that the Appellants did not leave the camp along with the allotted gun arms. The said Habildar, Sri Anil Debbarma and the Constable 1126, Sri Haradhan Saha, who informed the P.W. 1, were not examined by the prosecution. Hence, there is no corroboration in the evidence of this witness to find that he was informed by the said persons regarding the missing of the Appellants along with the arms and ammunition. Sri Nidhiram Reang deposing as P.W. 2 stated that on the date of occurrence, while taking rest after his duty in the camp, he came to know that seven jowans, who were engaged for sentry duty were found missing. According to this witness, the said persons left the camp along with rifles and cartridges. In his cross-examination, this witness stated that he did not see the incident himself but learnt from the camp-in-charge. He denied the suggestion that the Appellants did not leave the camp along with the arms. From his cross-examination, it appears that he had no personal knowledge, except being informed by the camp-in-charge about the missing of the said persons. P.W. 3, Sri Rabirai Reang, who was also performing the duty as S.P.O. stated that, on 22.01.2002, seven jowans had fled the camp along with arms and ammunition. He denied the suggestion that the said persons did not leave the camp with rifles and cartridges. Another witness namely, Sri Ukiljoy Reang i.e. P.W. 4 was tendered by the prosecution and his cross-examination was declined. He stated nothing in favour of the prosecution. P.W. 5, Sri Kobendra Reang, who was a S.P.O. in the said camp, stated that the sentry on duty informed him that seven jowans have left the camp along with the cartridges. According to this witness, the Appellants along with others had left the camp. In his cross-examination, he stated that duty register was maintained in the camp and that they used to hand over the allotted rifles whenever they were not on duty. He further stated that one rifle belonging to Sachindra Reang (not Appellant) was recovered from the Damcherra jungle. According to this witness, the Appellants along with others had left the camp. In his cross-examination, he stated that duty register was maintained in the camp and that they used to hand over the allotted rifles whenever they were not on duty. He further stated that one rifle belonging to Sachindra Reang (not Appellant) was recovered from the Damcherra jungle. He denied the suggestion that the Appellants were not the S.R.O. and that they did not flee the camp along with the rifles and cartridges. From the evidence of this witness, it appears that a duty register and register for allotment of arms and ammunitions were maintained in the camp. Mr. Kirendra Reang deposing as P.W. 6 stated, that, on 22.01.2002, while he was taking rest after performing his duty, seven persons including the Appellants left the camp along with arms and emanations and that upon counting, the Appellants were found absent. In his cross-examination, this witness stated that he did not see the Appellants leaving the camp, but, he came to know about the fact later on. He denied the suggestion that the Appellants were not S.R.Os and that they did not leave the camp with arms. RW. 7, Sri Manikrai Reang, who was a witness to the seizure i.e. seizure list P/2/1 stated that, on being asked by the police, he put his signature in the said seizure list in the market. Therefore, from the evidence of this witness, it appears that his signature was obtained in the market i.e. not in the place of seizure. From the evidence of this witness, it appears that the seizure was not properly made. P.W.8, Sri Bidhu Bhusan Das, who was the officer-in-charge of Kanchanpur P.S. stated, that on receipt of the F.I.R, on 23.01.2003, he registered a case and endorsed the case for investigation to S.I. Debashis Saha. S.I. Debashis Saha deposing as P.W. 9 stated that after receipt of the F.I.R, he visited the place of occurrence, prepared a hand sketch map with separate index, recorded the statement of the witnesses and recovered one rifle being Bat No. 26 from Damcherra. According to this witness, the said rifle was issued to Sri Sachindra Reang (not Appellant). S.I. Debashis Saha deposing as P.W. 9 stated that after receipt of the F.I.R, he visited the place of occurrence, prepared a hand sketch map with separate index, recorded the statement of the witnesses and recovered one rifle being Bat No. 26 from Damcherra. According to this witness, the said rifle was issued to Sri Sachindra Reang (not Appellant). In his cross-examination, this witness stated that he could not seize the duty detailment register and the issue register of arms and ammunition, as those were taken by the S.P. on the date of occurrence. On his transfer, the investigation was taken up by Sri Arun Kumar Sarkar. Mr. Sarkar, deposing as P.W. 10 stated that after recording the statement, he arrested the Appellants and seized 6 numbers of rifles along with arms and ammunition, which were taken away by the fleeing S.R.Os. He further stated that during the investigation, it was revealed that the said 6 rifles were allotted to the S.R.Os, who fled the camp. Accordingly, the said Investigating Officer, at the close of the investigation, he submitted the charge sheet. In his cross-examination, he stated that he did not seize the attendance register of the S.R.Os and the issue register of arms and ammunition. He stated that during encounter, 4 numbers of rifles were recovered and 2 numbers of rifles were produced by Assam Rifles. He also stated that rifle No. 447 was found allotted in the name of S.P.O., Dhaneswar Reang. He farther stated that the said number was wrongly written as 447 instead of 477. 12. From the above evidence, it appears that none of the witnesses aforesaid saw the accused persons fleeing the camp along with the arms and ammunition. As revealed from the seizure list, no seizure was made from the possession of the Appellants. Though six rifles were seized/recovered, only one rifle i.e. rifle No. 477, which was stated to be allotted to Sri Dhaneswar Reang, was seized/recovered. But no allotment register was produced and proved in support of the contention that the rifle No. 477 was allotted to Sri Dhaneswar Reang. Regarding the other five rifles, neither the investigating officer nor any one of the witnesses stated anything as to whom those were allotted. 13. The Appellants were convicted for the offence under Section 409 I.P.C. 14. The provisions of Section 409 I.P.C. is as follows: 409. Regarding the other five rifles, neither the investigating officer nor any one of the witnesses stated anything as to whom those were allotted. 13. The Appellants were convicted for the offence under Section 409 I.P.C. 14. The provisions of Section 409 I.P.C. is as follows: 409. Criminal breach of trust by public servant, or by banker, merchant or agent. - Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 15. In order to convict a person for the offence under Section 409 I.P.C., the following essential ingredients are required to be proved: (1) That the accused was entrusted with the property in any manner; or that such property was in his dominion in his capacity of a public servant, or as banker, merchant, factor, broker, attorney or agent, in the way of his business in such capacity; (2) That the accused committed breach of trust in respect of that property. 16. Therefore, for convicting the person under Section 409 I.P.C., the prosecution must prove the factum of entrustment and factum of misappropriation on entrusted article. If the entrustment of the property and misappropriation are not proved, no conviction can stand in the eye of law. Plain reading of Section 409 read with Section 405 I.P.C. will leave to hold that in a case under Section409 both the said factums are to be established. Failure to prove any one of the said factum could be fatal for the prosecution. On behalf of the Appellants, it has been strongly argued by the learned Counsel appearing for the Appellants that the prosecution foiled to establish the factum of entrustment. 17. From the evidence of the prosecution witnesses, it appears that duty register as well as the register of allotment of arms and ammunitions were maintained in the camp. The prosecution, during the trial, failed to produce and prove the said registers and thus, failed to establish that arms and ammunition i.e. the rifles and cartridges were allotted to or entrusted with the Appellants. The prosecution, during the trial, failed to produce and prove the said registers and thus, failed to establish that arms and ammunition i.e. the rifles and cartridges were allotted to or entrusted with the Appellants. The learned Judge, being aware of this fact, stood judicial notice of the attendance registers and the list of arms and cartridges issued in the name of the S.P.Os on being produced by the learned Public Prosecutor in spite of strong objection being raised on behalf of the defence. The learned Trial Judge exhibited the said registers on the ground that those were prepared in course of official business of the Ghachiram Para S.P.O. camp and as such under the Evidence Act, those were admissible for taking judicial notice. 18. It is well settled that in a criminal case, the burden lies upon the prosecution to prove the allegations, brought against an accused, beyond all reasonable doubt. In the present case, as the prosecution alleged that the Appellants had fled the camps along with the arms and ammunition and thereby committed the offence under Section 409 I.P.C., it was the duty of prosecution to prove that the said arms and ammunitions were entrusted with the Appellants. But as revealed from the record, the prosecution failed to adduce substantive and cogent evidence to believe that the arms were allotted to the Appellants. From the impugned judgment, it is found that after the examination of the witnesses, the learned Public Prosecutor had produced the attendance register and the allotment register and on such production, the learned trial Judge took judicial notice of the contents of the said registers and held that the arms were allotted to the accused persons. The plea of the prosecution was that, as those registers were taken by the Superintendent of Police, the prosecution could not produce the said documents in time. The fact that some higher authority had kept the material/relevant documents with him, can't be a ground to accept those, at a latter stage, that too without giving the accused person, against whom those were used, an opportunity to controvert or disprove the correctness of the contents of the said documents. There can be no dispute that in a criminal trial no witness or document can be used against an accused without giving an opportunity to the accused to disprove/contradict such statement or documents. There can be no dispute that in a criminal trial no witness or document can be used against an accused without giving an opportunity to the accused to disprove/contradict such statement or documents. Though the said registers were prepared during the course of official business of the concerned officer in order to use the contents of the said documents against the accused persons, any opportunity should have been given to them to convert/disprove the correctness of such entry. By accepting the said documents, without giving any opportunity to the accused persons the learned trial Judge deprived the Appellants from exercising their right to prove their innocence. 19. Therefore, in my considered opinion, the learned Trial Judge committed error by holding the accused persons were guilty of the offence under Section 409 I.P.C. on the basis of the judicial notice taken by him in respect of the said registers. 20. In the light of the above discussion, it appears that the prosecution failed to establish by adducing cogent, reliable and substantive evidence that arms and ammunitions were allotted to the accused-Appellants and that the Appellants fled the camp along with the allotted arms and ammunitions. 21. Considering the entire facts and circumstances of this case and in view of the above discussion, I have no hesitation in concluding that the prosecution failed to establish one of the basic ingredients i.e. the factum of entrustment in respect of the arms and ammunition to the Appellants. Therefore, I am inclined to hold that the learned Trial Judge committed illegality by convicting the accused persons for the offence under Section 409 I.P.C. and as such, the impugned judgment and order warrants interference by this Court. 22. Accordingly, the impugned judgment and order is set aside and the accused-Appellants are directed to be set at liberty forthwith. 23. In the result, the appeal is allowed. 24. Send down the Lower Court records. Appeal allowed