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2017 DIGILAW 176 (ORI)

Bhagirathi Mishra v. State of Orissa

2017-02-16

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Bhagirathi Mishra along with one Kulamani Rath faced trial in the Court of Addl. Chief Judicial Magistrate (Special), Cuttack in G.R. Case No. 2137 of 1986 for offences punishable under sections 408/477-A/120-B of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 27.09.1994 acquitted the co-accused Kulamani Rath of all the charges and also the petitioner of the charges under sections 477-A/120-B of the Indian Penal Code. The petitioner however was found guilty under section 408 of Indian Penal Code and sentenced to undergo R.I. for three months and to pay a fine of Rs.500/-(rupees five hundred only), in default, to undergo R.I. for 20 (twenty) days. The appeal preferred by the petitioner before the learned Sessions Judge, Cuttack in Criminal Appeal No. 141 of 1994, was also dismissed vide impugned judgment and order dated 12.04.1996, hence this revision. It is not in dispute that the petitioner Bhagirathi Mishra is dead and his legal heirs have been substituted as petitioners nos. 1-A, 1-B, 1-C, 1-D and 1-E to continue the revision petition. 2. It is the prosecution case that the petitioner Bhagirathi Mishra was the Clerk and co-accused Kulamani Rath (acquitted) was the Head Master of Orissa Police High School, Tulasipur, Cuttack during the period 1981 to 1984. It is the further prosecution case that an amount of Rs.272/-(rupees two hundred seventy two only) was collected from different students by the respective Class Teachers which was deposited with the petitioner, but the accused persons did not deposit the said amount in the Police Office, Cuttack and dishonestly misappropriated the same. 3. On the basis of the First Information Report submitted by S.A. Hassan, Inspector, CID, CB, Orissa, Cuttack before the Inspector-in-Charge, Bidanasi Police Station, the case was registered. During the course of investigation, the relevant witnesses were examined, documents were seized and after completion of investigation, charge sheet was submitted against the petitioner as well as the co-accused Kulamani Rath under sections 408/477-A/120-B of Indian Penal Code. 4. During the course of trial, the prosecution examined 27 witnesses, out of which P.W. 2 to 16 are the teachers of the Orissa Police High School, Cuttack and all of them have stated that they collected bus fares from the students and deposited the same with the petitioner. 4. During the course of trial, the prosecution examined 27 witnesses, out of which P.W. 2 to 16 are the teachers of the Orissa Police High School, Cuttack and all of them have stated that they collected bus fares from the students and deposited the same with the petitioner. P.W.1 is the Head Clerk in the Office of Inspector of School, Cuttack-I Circle and he has stated about the role assigned to the petitioner as Clerk and co-accused Kulamani Rath as Head Master of the School. P.W.17 was the Senior Assistant attached to D.G. of Police Office, Buxi Bazar, Cuttack and he has stated about the procedure relating to deposit of the bus fare collected from the students of the school in the Establishment Section of D.G. Police Office. P.W.18 was the Duftary in the Odisha Police High School, Tulasipur and he stated that he use to go to I.G. Office for deposit of money of the school. P.W.19 to P.W.24 are the seizure witnesses, out of which P.W.22, Head Master in Charge of Orissa Police High School has stated about the internal audit conducted as per the direction of the Secretary and also preparation of audit report. P.Ws. 25, 26 and 27 are the Investing Officers. 4. The learned Trial Court after discussing the evidence on record has been pleased to observe that from the evidence of the teachers, Head Master of the School and Sr. Assistant of the D.G. Police Office (P.W. 17), it is seen that the practice was that the cash was collected from the students by the Class Teachers and the same was being deposited in the D.G. Office by the Head Master. The learned Trial Court further held that P.Ws. 2 to 14 have deposed in their evidence that they collected bus fare from the students and handed over the same to the petitioner and the petitioner on receipt of the money made endorsement in daily collection register reflecting the amount collected from the respective teachers and all teachers have stated that they handed over the cash to the petitioner. 2 to 14 have deposed in their evidence that they collected bus fare from the students and handed over the same to the petitioner and the petitioner on receipt of the money made endorsement in daily collection register reflecting the amount collected from the respective teachers and all teachers have stated that they handed over the cash to the petitioner. The learned Trial Court further observed that Ext.2 is the daily collection register in which the bus fare was reflected and the petitioner made endorsements vide Ext.A and Ext.B in Ext.2 showing that he deposited the bus fare with the accused Head Master and the endorsement was made in his own hands but there was no endorsement of the co-accused Head Master. The learned Trial Court was of the view that there was no material to show that the petitioner deposited the amount with the co-accused Head Master Kulamani Rath and accordingly, he came to hold that the petitioner had not deposited the bus fare which was collected from the students and dishonestly misappropriated the same for his own use. The learned Trial Court however held that the prosecution has not been able to prove the offences under sections 477-A and 120-B of the Indian Penal Code against the petitioner. The learned Appellate Court has been pleased to hold that there is no dispute that the amount has not been deposited in the Police Office, Cuttack and there is convincing evidence that an amount of Rs. 272/-collected towards bus fare in the month of October 1981 was received by the petitioner as cashier. The learned Appellate Court agreed with the finding of the learned Trial Court in convicting the petitioner under section 408 of the Indian Penal Code. 5. Learned counsel for the petitioner Mr. Nibas Chandra Mishra, challenging the impugned judgment and order of conviction contended that there are materials available on record that the money collected by the petitioner from different class teachers was deposited with the Head Master and the Head Master having been being acquitted of the charge, the conviction of the petitioner was not proper and justified. It is further contended that the documentary evidence also revealed that the amount collected was handed over to the Head Master but that has not been properly considered. It is further contended that the documentary evidence also revealed that the amount collected was handed over to the Head Master but that has not been properly considered. It is further contended that the material questions relating to the entrustment part having not been put in the accused statement, the learned Courts below should not have utilized such circumstances against the petitioner which has resulted in causing serious miscarriage of justice and therefore, the impugned judgment and order of conviction is not sustainable in the eye of law and should be set aside. Mr. Deepak Kumar, learned Addl. Standing Counsel for the State on the other hand contended that it is the consistent evidence of all the class teachers that after collecting the bus fare from different students, they had deposited the amount with the petitioner who had received the same and the endorsement of the petitioner in token of receipt of such amount is available in the daily collection register (Ext.2). The learned counsel further contended that since there is no documentary or clinching oral evidence that the money which was handed over to the petitioner was given to the Head Master, therefore, the learned Trial Court rightly acquitted the co-accused Head Master. It is contended that the case of the petitioner stands in a completely different footing and that there having been no illegality or infirmity either in the assessment of the evidence or in the order of conviction, the concurrent findings of facts should not be disturbed. 6. Considering the submissions made by the learned counsels for the respective parties and on perusal of the impugned judgments of the Courts below and the evidence on record, it appears that the conviction of the petitioner under section 408 of the Indian Penal Code is mainly based on the evidence of the teachers who have stated that after collecting the amount towards bus fare, they deposited the same with the petitioner. In order to attract the ingredients of the section 408 of the Indian Penal Code, the prosecution is required to prove that the accused was a Clerk or servant and he was entrusted in such capacity with property, or with any dominion over property and he committed criminal breach of trust in respect of such property. There is no dispute that the petitioner was a clerk in the School in question. There is no dispute that the petitioner was a clerk in the School in question. So far as entrustment of the bus fare to the petitioner is concerned, though the witnesses have stated that they deposited the amount with the petitioner but most peculiarly in the accused statement, no specific question has been put to the petitioner on that aspect. The only question which is relevant so far as this bus fare amount is concerned, is as follows:- “Q-3. It appears from their evidence that a sum of Rs.272/-(rupees two hundred seventy two only) was collected from different students of your school during the period from 01.01.1981 to 31.12.1981 as bus fare to be deposited in the Police Headquarters, Cuttack. What have you got to say? Ans. It is false (Micha Katha).” This question does not indicate the entrustment part which the witnesses have stated in their depositions. In case of Sujit Biswas Vs. State of Assam reported in (2013) 55 OCrR(SC) 1036, it is held that in a criminal trial, the purpose of examining the accused person under section 313 Cr.P.C., is to meet the requirement of the principles of natural justice, i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him and the Court must take note of such explanation. The circumstances which are not put in his examination under section 313 of Cr.P.C. cannot be used against him and must be excluded from consideration. In case of Debi Charan Sunani -Vrs.-State of Orissa reported in 2012 (Suppl.-II) Orissa Law Reviews 382, it is held that unless the circumstance appearing against an accused is put to him in his examination under section 313 of Cr.P.C., the same cannot be used against him. It is strange that when the Trial Court is under a legal obligation to put the incriminating circumstances to the petitioner and solicit his response and when the prosecution has examined as many as twenty-seven witnesses and exhibited fifty-four documents, not a single document has been referred to nor the evidence of any particular witness has been referred to in the accused statement. Out of the seven questions put to the petitioner in the accused statement, question no.6 is “you heard the witnesses deposing in this case?” and question no.7 is ‘do you like to adduce evidence in defence?” The rest five questions have been put in an omnibus manner without specific reference either to any witness or to any document. The entire prosecution evidence should not have been encapsulated in few questions, without relevant details being indicated. The learned Trial Court seems to have thought that the examination of the accused is an idle formality and therefore, the slipshod manner which he has adopted in framing the questionnaire has caused serious prejudice to the petitioner and the whole object of affording a fair and proper opportunity to the petitioner of explaining the circumstances appearing against him in the evidence has been frustrated. Therefore, in view of the fact that on the most vital aspect of the case relating to the entrustment of the bus fare to the petitioner having not been specifically put to him in the 313 Cr.P.C. statement of the petitioner giving opportunity to furnish explanation, the said circumstance cannot be utilized against the petitioner and it has to be excluded from consideration. Once the entrustment part is excluded from the consideration, I am of the humble view that the ingredients of the offence under section 408 of the Indian Penal Code cannot be attracted against the petitioner. The learned Trial Court as well as the learned Appellate Court were not justified in relying upon the evidence relating to the entrustment part of the bus fare as per the evidence of the class teachers P.Ws.2 to 16 and documentary evidence Ext.2 i.e. the daily collection register against the petitioner without the question relating to the entrustment having been put to him in the accused statement. 7. In view of the above discussions, I am of the view that the impugned judgment and order of conviction and the sentence passed there under is not sustainable in the eye of law and the same is hereby set aside. Accordingly, the revision petition is allowed. The petitioner Bhagirathi Mishra is acquitted of the charge under section 408 of the Indian Penal Code.