Criminal Revision No.1956 of 2002 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Revision No.1956 of 2002 Date of decision: 29.4. 2009 Mander Singh ......Petitioner Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Dhirender Chopra, Advocate and Mr.M.S.Joshi, Advocate, for the petitioner. Mr.Aman Deep Singh Rai, AAG, Punjab. **** SABINA, J. The petitioner was convicted for an offence under Section 409 of the Indian Penal Code (“IPC”- for short) vide judgment and order dated 31.8.1998 passed by the Judicial Magistrate, Ist Class, Faridkot. Vide order of the even date, the petitioner was sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs.500/-. Aggrieved by the same, the petitioner preferred an appeal and the same was dismissed vide judgment dated 17.9.2002 Criminal Revision No.1956 of 2002 2 by the Additional Sessions Judge, Faridkot. Hence, the present revision petition. Prosecution case, as noticed by the Appellate Court in para 2 of its judgment, is reproduced herein below:- “That the brief facts leading to the registration of the case bearing FIR No.66 dated 28.7.1994, under Section 409 of the IPC of Police Statiion, City Kotkapura are that the appellant had been issued rifle bearing No.18484 Mark 7.62 mm. Butt No.386 along with 50 cartridges of the same bore during his posting as guard on the oil depot, Kotkapura and it is during the course of events that on 18.4.1994 ASI Darshan Singh carried on checking of weaponary and found that appellant could not account for the rifle and five cartridges that was earlier issued to him for carrying on his official duties and it is alleged that unable to account for this loss of weapon and ammunition the accused went away on the pretext of tracing it and remained absent till 20.9.1994 without any intimation or sanction and regarding this loss of weapon, the present case was got registered on the statement of ASI Darshan Singh.” Learned counsel for the petitioner has submitted that the Courts below have erred in convicting and sentencing the petitioner. In fact, the prosecution case was doubtful. The petitioner had Criminal Revision No.1956 of 2002 3 reported the theft of the rifle and five cartridges to the concerned Station House Officer on 22.7.1994. However, instead of registering theft case, the petitioner has been falsely involved in this case. It was evident from the record that earlier FIR was registered on 25.7.1994 and thereafter, the date '25th' has been altered to '28th' in FIR No.66 as well as other documents by the Investigating agency,. Learned counsel for the petitioner has placed reliance on Kailash Kumar Sanwatia v. State of Bihar and another, AIR 2003 Supreme Court 3714, Sardar Singh v. State of Haryana, AIR 1977 Supreme Court 1766 and Janeshwar Das Aggarwal v. State of U.P., AIR 1981 Supreme Court 1646. Learned State counsel, on the other hand, has submitted that the petitioner had committed criminal breach of trust with regard to the official rifle and five cartridges. Prosecution had been successful in proving its case. The basic requirement to bring home the accusations of criminal breach of trust are:- (1)that there should be entrustment of property to a person (2)the person entrusted (a) dishonestly misappropriating or converting to his own use that property or (b) dishonestly, using or disposing of that property or wilfully suffering any other person so as to do in violation- Criminal Revision No.1956 of 2002 4 (i)of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. I have gone through the record of the case. There is no doubt that on some of the documents, the date has been altered from '25th' to '28th'. Even in some documents, the date of FIR is mentioned as 25.7.1994 in police record, whereas, the FIR is dated 28.7.1994. Learned trial Court, while dealing with this aspect, observed in para No.24 of its judgment as under:- “According to the First Information Report and statement of Darshan Singh PW4 Ex.PA given to the police as well as his statement given on oath, he had checked the weapon on 28.7.1994, where according to the remand papers dated 29.9.1994, accused Mander Singh committed loss of one rifle 7.62 M.M. and five live cartridges on 22.7.1994 and an FIR was registered on 25.7.1994. It was further written that the accused was arrested on 29.9.1994. Thus, according to the statement of Darshan Singh ASI Ex.PA given to the police and FIR, it was found only on 28.7.1994 that Mander Singh had lost the weapon and ammunition. The remand paper also shows the date of FIR as 25.7.1994, whereas, actually Criminal Revision No.1956 of 2002 5 the date of registration of FIR is dated 28.7.1994. Therefore, it appears that this remand paper has been written haphazardly by Kundan Singh SHO, Police Station City, Kotkapura and was forwarded by the Additional P.P.Shri R.S.Brar without applying his mind probably to help the accused. Thus, here the conduct of Kundan Singh, who was then posted as SHO, Police Station City, Kotkapura and Shri R.S.Brar are held to be most reprehensible, unwarranting of the holders of the offices which they held at that time. However, these contradiction in the remand paper and FIR do not throw any suspicion regarding the crime of the accused. Thus, an open attempt made by Kundan Singh, SHO and Shri R.S.Brar, to scuttle the case of the prosecution is ignored without any prejudice to the case of the prosecution which has otherwise been proved on the record. Therefore, this point is determined against the accused.” The said reasoning given by the trial Court is on a sound footing. Although there are some interpolation regarding the date of registration of FIR and recording of statement during investigation yet the same might have been done by the police officials to help their colleague/petitioner. It has been established on record that the petitioner was entrusted with rifle and five cartridges in question. The petitioner failed to account for the same and has, thus, Criminal Revision No.1956 of 2002 6 misappropriated the same. The ingredients of commission of criminal breach of trust are made out in this case and in these circumstances, the Courts below have rightly convicted and sentenced the petitioner under Section 409 IPC. The plea taken by the petitioner that the rifle and five cartridges in question had been lost does not inspire confidence. The petitioner was expected to keep the rifle as well as the cartridges in his safe custody. The plea of theft apparently has been taken by the petitioner with a view to save himself from punishment for criminal breach of trust. The impugned judgments of the Courts below do not call for any interference. Accordingly, this petition is dismissed. (SABINA) JUDGE April 29, 2009 anita