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Delhi District Court

State vs . Puran Singh & Anr. on 21 August, 2012

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      IN THE COURT OF MS. NAVITA KUMARI BAGHA: MM, NEW DELHI
                                                                 
                               STATE VS. PURAN SINGH & ANR.
                                       FIR NO. : 274/1995
                                         P.S. : Tilak Marg
                                         U/Sec. : 409 IPC
JUDGMENT :

­

a) Srl. No. of the case & Date of institution : 729/2/03 & 01.08.1996

b) Date of commission of offence : 28.06.1995

c) Name of the complainant : State through R.K. Tiku

d) Name of the accused : 1. Puran Singh S/o Sh. Narain Singh R/o 3/51, Old Prem Nagar, New Delhi.

2. Rattan Singh S/o Sh. Chatru Singh, R/o A­95, Kardam Puri, Shahdara, Delhi.

e) Nature of offence complained of                  :        U/Sec. 409 IPC

f) Plea of the accused person                       :        Accused pleaded not guilty

g) Final Order                                      :         Acquitted

h) Date of order                                    :        21.08.2012
   

BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:­

1. The chargesheet was filed against accused Puran Singh and Rattan Singh for the offence punishable U/Sec.409 IPC on the basis of allegations that on 28.06.1995, the accused Puran Singh and Rattan Singh were working as In­ charge and Attendant of one Temple Gallery (Ritual Gallery) of National Handicrafts and Handlooms Museum, Pragati Maidan, New Delhi and on that day, they both in furtherance of their common intention committed criminal State Vs. Puran Singh & Anr.

P.S. Tilak Marg Page 2 of 9 breach of trust with respect to five pieces of peacocks fixed on lamp displayed in open in Temple Gallery of National Handicrafts and Handlooms Museum.

2. After supplying the copies to accused persons U/Sec.207 Cr.P.C. and after considering the entire material, the Ld. Predecessor Court vide order dated 28.05.2001 held that prima facie a case U/Sec.409/34 IPC was made out against both the accused persons and a case U/Sec.109 IPC was made out against accused Rattan Singh and accordingly charge U/Sec.409/34 IPC against both the accused and U/Sec.109 IPC against accused Rattan Singh was framed to which they pleaded not guilty and claimed trial. But the Hon'ble Sessions Court vide its order dated 06.03.2002, on the revision petition filed by accused Rattan Singh, set aside the order on charge with respect to Section 109 IPC and discharged the accused Rattan Singh U/Sec.109 IPC, but upheld the charge U/Sec.409/34 IPC against both the accused persons.

3. The prosecution had cited 10 witnesses, out of which only 7 witnesses were examined.

4. Statements of accused persons were recorded U/Sec.313 Cr.P.C. on 24.02.2012 and the incriminating evidence was put to them. They denied the case of the prosecution and said that they are innocent and have been falsely implicated in this case. However, they opted for not leading any evidence in their defence.

5. I have heard the final arguments from Ld. APP Sh. Honey Goel and Ld. Defence Counsel Sh. Gaje Singh and perused the record.

6. Let us first examine the evidence led by the prosecution. The first witness of State Vs. Puran Singh & Anr.

P.S. Tilak Marg Page 3 of 9 the prosecution i.e. PW­1 is S.I. Raj Singh who deposed that on 29.06.1995, he was posted at P.S. Tilak Marg as Duty Officer from 5.00 p.m. to 1.00 a.m. and on that day he received a rukka through H.Ct. Fajrooddin, sent by SI C.L. Meena on the basis of which he recorded FIR No.274/1995 U/Sec.380 IPC which is Ex.PW1/A.

7. PW­2 is R.K. Tiku, Welfare Administrator (HQ), Ministry of Labour, who deposed that on 28.06.1995 he was working as Administrative Officer at Natinal Handicrafts and Handloom Museum, Pragati Maidan and on that day he was called by the Director of the Museum and was informed that five pieces of peacocks fixed on the lamp displayed in the Temple Gallery (Ritual Gallery) of their office at Pragati Maidan were missing which was noticed by the In­charge of the gallery i.e. accused Puran Singh who had been checking the items with another Gallery Attendant i.e. accused Rattan Singh. He further deposed that both the accused were asked to stay there to inform regarding missing of the peacocks to the Head of the institution as he was busy in another room in a meeting but the Gallery Attendant Rattan Singh, instead of staying back for reporting the matter to the head of the institution, left the office immediately and he reported the matter to the police on the directions of the senior Director of Institute vide his report Ex.PW2/A. He further deposed that on 20.07.1995 he handed over certain photocopies of the documents to the I.O. which he seized vide seizure memo Ex.PW2/B. However, the witness could not produce the original documents by stating that he had been transferred from the Crafts Museum. In his cross­examination by the Ld. Defence Counsel, he admitted it correct that he was informed by the accused Puran Singh that five pieces of peacocks fixed on the metal lamp were found State Vs. Puran Singh & Anr.

P.S. Tilak Marg Page 4 of 9 missing. He said that he did not know if any other official by the name of Mahavir Singh was also deputed in the gallery in question at the relevant time.

8. PW­3 is Ct. Pradeep Kumar who deposed that on 18.03.1996 he was posted as Constable at P.S. Tilak Marg and he joined the investigation in this case with I.O. and reached at the house of accused Puran Singh alongwith I.O. where the I.O. interrogated and arrested the accused and conducted his personal search vide memo Ex.PW3/A and also conducted the search of the house vide memo Ex.PW3/B.

9. PW­4 is A.S.I. Fazluddin who deposed that on 29.06.1995 he was posted at P.S. Tilak Marg as Head Constable and on that day he joined the investigation in this case and reached at Pragati Maidan where complainant met them and gave a complaint to the I.O. who prepared the rukka and got the complaint registered. He further deposed that on 20.07.1995 he visited Pragati Maidan alongwith I.O. where complainant R.K. Tikku met them and handed over some documents to them which were seized vide memo Ex.PW2/B.

10. PW­5 is Anil Kumar Aggarwal who deposed that on 28.06.1995 he was posted as Exhibition Officer at National Handicrafts and Handlooms Museum at Pragati Maidan. He further deposed that there used to be three galleries in the said Museum at his time and there had to be at least one Attendant and one In­charge in each gallery and that accused Puran Singh and Rattan Singh were posted in Temple Gallery as In­charge and Attendant. He further deposed that the Attendant and In­charge used to sign in a register to mark their attendance, kept either by Security Officer or by Administrative Officer and after opening the gallery, the Attendant and In­charge of the gallery also State Vs. Puran Singh & Anr.

P.S. Tilak Marg Page 5 of 9 used to sign in one more register regarding the status of the gallery and the items/articles present therein. He further deposed that on 28.06.1995, five metal peacocks were found stolen/missing from a metal lamp displayed in the Temple Gallery during the duty hours of the accused persons in the said gallery. In his cross­examination by the Ld. Defence Counsel he said that he was neither the In­charge of the gallery nor the Attendant or In­charge used to work under him.

11. PW­6 is Jyotindra Jain, Professor in IGNCA, Janpath, Ministry of Culture, Government of India, New Delhi who deposed that in the year 1994 he was working as a Senior Director at National Handicrafts and Handlooms Museum, Pragati Maidan and that the accused Puran Singh and Rattan Singh were Class IV employees in the said Museum. He further deposed that on the day of incident, five metal peacocks were found missing from metal lamp kept in the Temple Gallery where both the accused were posted. He further deposed that the accused Puran Singh had taken over the charge of all the items of the Museum from his predecessor Panjo Gupta on 28.09.1994 vide his order Mark X. In his cross­examination by defence counsel he said that on the day of incident, accused Puran Singh had come to him and informed him that when he had gone to attend natural call and came back, he found that some peacocks were missing. He further said that there were 23 thousand objects in the museum and he could not tell when the said lamp with peacocks were brought to the museum and was displayed. However, he said that a record was maintained in this regard in the museum which must had given to the I.O., but he admitted that there is no such record in the file. He denied the suggestion that a false complaint was made against accused State Vs. Puran Singh & Anr.

P.S. Tilak Marg Page 6 of 9 persons.

12. PW­7 is Bhanwar Singh who deposed that in the middle of year 1995, he joined investigation with I.O. who conducted the search of the residential premises of accused Rattan Singh vide memo Ex.PW7/A but in the search no incriminating article was found.

13. The defence counsel has vehemently argued that the accused persons deserve acquittal because they have not committed any criminal breach of trust and that the charge­sheet U/Sec.409 IPC was wrongly filed against them because it was not a case of criminal breach of trust rather it was a case of simple theft only, which was committed by some other person. It is pertinent to mention here that initially the FIR in this case was registered U/Sec.380 IPC and not U/Sec.409 IPC and that too without mentioning name of any of the accused persons but when the charge­sheet was filed it was filed against them for the offence punishable U/Sec.409 IPC. It is also pertinent to mention here that the complaint dated 28.06.1995 i.e. Ex.PW2/A, on the basis of which FIR was registered, was also filed regarding the missing of five peacocks in the Temple Gallery of National Handicrafts and Handlooms Museum. It was not filed for any criminal breach of trust committed by the accused persons. The defence counsel while relying upon the judgment of Hon'ble High Court of Punjab and Haryana in a case titled as Harcharan Singh Vs. State of Punjab, 1999 (1) C.C. Cases HC 1, has argued that the prosecution has failed to prove the entrustment of five peacocks with the accused persons as well as dishonest misappropriation on their part and hence they are required to be acquitted. In the abovesaid case, the Hon'ble High Court has held, State Vs. Puran Singh & Anr.

P.S. Tilak Marg Page 7 of 9 "Section 405 and 409 - Dishonestly misappropriating - Prosecution established that petitioner was in­charge of store and some shortage notice - Not established that petitioner dishonestly misappropriated goods or not - Held : In certain facts some presumption permissible but when it is not established that he had dishonestly misappropriated articles, conviction cannot be sustained - Necessary ingredients of Section 405 r/w Section 409 IPC not established - Revision petition accepted."

14. In order to prove the offence of criminal breach of trust, the prosecution must prove that one who is, in any manner, entrusted with the property, dishonestly misappropriates the same or converts it to his own use. In order to sustain conviction U/Sec.409 IPC, two ingredients are to be proved: (i) the accused, being public servant or a banker or an agent, was entrusted with property of which he was duty bound to account for; and (ii) the accused has committed criminal breach of trust with respect to the said property. What amounts to criminal breach of trust is provided in Section 405 IPC. The basic requirements to bring home the offence under Sec.405 IPC are that a person is entrusted with a property or with any dominion over the property and the said person dishonestly misappropriates or converts that property to his own use. Thus in order to prove the offence of criminal breach of trust, the prosecution must prove that the accused in any manner was entrusted with the property of the Government. Though in the present case, there is no categorical evidence viz. document in the nature of list or charge, to show that the physical charge of the missing articles was made over to the accused persons, yet even if it is assumed that some sort of entrustment was there with the accused persons being In­charge and Attendant of the Temple State Vs. Puran Singh & Anr.

P.S. Tilak Marg Page 8 of 9 Gallery, still there is absolutely nothing on the record to show that they had dishonestly misappropriated the case property i.e. the five peacocks fixed on the lamp displayed in the open in the Temple Gallery of National Handicrafts and Handlooms Museum. It could not be ignored that it is the admitted case of the prosecution that the lamp with five pieces of peacocks was displayed in open in the Temple Gallery which was accessible to all as it was open for general public. In similar facts and circumstances the Hon'ble Supreme Court had set aside the conviction of appellant/accused U/Sec.409 IPC in case titled as Janeshwar Das Vs. State of U.P., AIR 1981 SC 1646. In the said case, the appellant/accused was Overseer and was put In­charge of tubewells and some open godowns which were attached to those tubewells and were containing cement, bricks and coal and when some shortage of material was noticed in the godown, the accused was charged and convicted U/Sec.409 IPC. His conviction was upheld by the Hon'ble High Court also. But the Hon'ble Supreme Court, while setting aside his conviction, held, "Although the High Court has found that the articles in the godowns were entrusted to the appellant, there is no evidence at all to show that any such entrustment was made. No document in the nature of a list or charge has been shown to show that physical charge of the articles after being regularly counted in the godowns was made over to the appellant.

/ / Even assuming that some sort of entrustment was there, there is absolutely nothing in this case to show that the appellant 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 State Vs. Puran Singh & Anr.

P.S. Tilak Marg Page 9 of 9 knowledge of the appellant. Before a conviction under Section 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 in holding that as the appellant has not given any explanation for the shortage, he must be presumed to have misappropriated the articles kept in the godowns." Similarly in the present case, there is no evidence either direct or circumstantial that the accused persons had misappropriated the five pieces of peacocks fixed on the lamp. As held earlier, the Temple Gallery where the said lamp was displayed, was accessible to general public and thus the possibility of its theft could not be excluded. The PW­7 has categorically stated that in search of the residential premises of the accused, no incriminating article was found. The prosecution has failed to prove the factum of misappropriation of the case property i.e. the five peacocks fixed on the lamp by the accused persons. Hence, it is held that the prosecution has failed to prove its case U/Sec.409 IPC against the accused persons and therefore they are acquitted for the same. Their bail bonds stand cancelled. Their sureties are discharged. The endorsements on the documents of the sureties, if any, be cancelled.

         (Announced in the open                                                           (NAVITA KUMARI)
          Court on 21.08.2012)                                                             MM, NEW DELHI
State Vs. Puran Singh & Anr.
FIR No.274/1995
P.S. Tilak Marg
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FIR No.      274/95
U/Sec.       409 IPC
P.S.         Tilak Marg


21.08.2012

Present :  APP for state.
           Both accused with counsel Sh. Gaje Singh.

Vide separate judgment the accused persons are acquitted of the offence punishable U/Sec.409/34 IPC. Their bail bonds are cancelled. Their sureties are discharged. Endorsements on the documents of the sureties, if any, be cancelled.

Fresh Bail bond are furnished by accused persons U/Sec.437­A Cr.P.C. which shall be valid for six months from today.

Copy of the judgment be given to the accused free of cost. File be consigned to Record Room.

(Navita Kumari) MM/ND/21.08.12 State Vs. Puran Singh & Anr.

P.S. Tilak Marg