IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R.No.178/2002 Decided on:16.6.2009. _______________________________________________ Amar Singh. …..Appellant. Versus State of H.P. …Respondent. Coram: Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?.No. For the appellant: Mr.Bhupinder Ahuja, Advocate. For the respondents: Mr.Vikas Rathore, Dy. Advocate General. ____________________________________________ SURINDER SINGH,J(Oral): Heard and gone through the record. The conviction and sentence of the petitioner was upheld by the learned Sessions Judge in Criminal Appeal No. 5 of 2001 for the offence punishable under Section 406 of the Indian Penal Code allegedly for not returning the ox entrusted to the petitioner by the complainant thereby committing breach of trust punishable under Section 406 I.P.C. In nutshell, the case of the prosecution is that on 20.4.1997 the complainant Sh. Sadhu Ram entrusted the custody of ox with the accused-petitioner to which he dishonestly and illegally used as his own property and Whether reporters of the Local papers are allowed to see the judgment? yes . 2 disposed of by selling the same in the month of March, 1997 to PW3 Sh. Inder Singh for a consideration of Rs.1100/-. The case was registered against the petitioner. The police recovered the ox from the possession of PW3 Inder Singh and thereafter handed over back to the complainant on Sapurdari. After recording the statement of the witnesses and on completing the challan, it was presented in the Court of Magistrate for trial of the petitioner. Finding a prima facie case against the petitioner, the charge for the aforesaid offence was framed to which he pleaded not guilty and claimed trial. To prove its case the prosecution examined its witnesses and the petitioner was also examined under Section 313 Cr.P.C. His case was denial simplicitor. However, he produced DW1 Sh.Chaman Lal in his defence. According to him, the ox which was recovered from PW3 Inder Singh was the property of accused but the defence raised by the petitioner was disbelieved by the learned trial Court. As such he was convicted and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.500/- and in default of payment of fine, the accused- petitioner was further ordered to undergo simple imprisonment for a period of 15 days. The conviction and sentence was unsuccessfully assailed by the petitioner before the Court of Sessions and 3 now the judgment of the courts below have been assailed in this revision petition. Shri Bhupinder Ahuja, learned counsel for the petitioner has vehemently argued that the learned trial Court did not appreciate the evidence on record in the right perspective and attached too much importance to the contradictory statement of the witnesses. On the other hand, Shri Vikas Rathore, learned Additional Advocate General has supported the impugned judgments passed by the courts below. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the evidence on record. PW1 Sh.Sadhu Ram-complainant categorically stated that he had entrusted the ox to the accused- petitioner because he wanted to use his ox to ploughing his field for some time and assured to return it back when required. After about 3-4 months when the complainant went to him and asked to return the ox, the accused told him that the ox had died. But later on he came to know that the accused had sold it in village Chakota to PW3 Sh.Inder Singh for Rs.1100/-. When he approached PW3 he admitted to have purchased it from the accused and refused to return the ox. As such he lodged the F.I.R. Ext.PW1/A with the police. He identified his ox at the time of the recovery effected from PW3 Sh.Inder Singh which was given to him on sapurdari. PW3 Inder Singh also admitted the fact of 4 selling the ox by the accused for a consideration of Rs.1100/- to him and admitted having been identified by PW1 as his own property. In his cross-examination, nothing material could be extracted from him which could benefit the accused. In his statement under Section 313 Cr.P.C., the accused has admitted to have sold his own ox to PW3 Sh.Inder Singh which fact was not suggested to the complainant in his cross-examination but he chose to examine DW1 Sh.Chaman Lal who is alleged to have seen an ox with the accused for the last about 5-6 years. But in cross-examination he deposed that he did not know whether the ox recovered from Sh.Inder Singh belonged to Sh.Sadhu Ram complainant or was that of the accused Amar Singh. On the critical examination of the aforesaid evidence, the ox stands duly identified by the complainant at the time of the recovery. His testimony to this extent could not be shattered. Thus it stands duly proved that the accused was entrusted with the custody i.e. the ox by the complainant to which he dishonestly sold it to PW3 Inder Singh. In these circumstances, the ingredients of the offence under Section 406 of the Indian Penal Code stand fully proved. As such, I do not find any fault in the concurrent findings of facts arrived at by the learned trial Court to sustain his conviction. In so far as the sentence is concerned, the value of the property is assessed at Rs.2,000/- and the 5 incident in question had taken place about decade ago. The report of the Probation Officer was called for. Nothing adverse has been reported against the petitioner. The custody of the ox was given back on Sapurdari to the complainant. Therefore, in these circumstances while upholding the conviction of the petitioner, the circumstance do warrant that instead of sentencing the petitioner to jail, the interest of justice would be met, in case the benefit of Section 4 of the Probation of Offenders Act is accorded to him. As such the petitioner is ordered to be released on probation by giving him the benefit of Section 4 of the Probation of Offenders Act to keep peace and be of good behaviour for the period of three years from today. The petitioner shall execute the bond in the sum of Rs.5,000/- with one surety of the like amount to the satisfaction of the learned trial Court in terms of Section 4 aforesaid within four weeks from today, further the petitioner shall also deposit the amount of Rs.1,000/- as compensation in the learned trial Court within the period aforesaid, which shall be paid to the complainant PW1 Sadhu Ram. The sentence passed by the learned trial Court and upheld in the appeal stands accordingly modified to the above extent. The matter stands disposed of. Send down the records. (Surinder Singh), Judge. June 16,2009(R) 6