In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 812 of 2002 Date of decision: March 10, 2009 Jaswant Singh ... Petitioner vs. State of Punjab ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.S. Bajaj, Advocate for the petitioner. Ms. Simsi Dhir, AAG, Punjab for the respondent. A.N. Jindal, J This revision petition is directed against the judgment dated 20.4.2002 passed by the learned Additional Sessions Judge, Jalandhar, dismissing the appeal filed by the petitioner-accused Jaswant Singh (herein referred as “the petitioner”) against the judgment dated 26.2.1998 passed by the Judicial Magistrate Ist Class, Jalandhar, convicting and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.300/- under Section 409 IPC, for misappropriating the Government property. The brief resume of facts is that on 27.5.1985 HC Gurvinder Singh was posted as In-charge Malkhana in Police Station Division No.4, Jalandhar. On that day, on enquiry by Amar Singh SHO, about the Government property, from him, he disclosed that he has been posted since 26.11.1984 in place of the petitioner, who despite repeated requests did not hand over the charge of the Malkhana to him. According to HC Gurvinder Singh, case property was in possession of MHC Jaswant Singh prior to him. Then, on a letter written by Inspector Amar Singh to Additional Superintendent of Police, verification was made, wherein, the following articles were found to be short :- Crl. Revision No. 812 of 2002 -2- *** 1. 1608 cartridges of .303 bore; 2. One bayonet; 3. 27 hand cuffs; and 4. 10 Lathies. Consequently, FIR under Section 409 IPC was registered on 28.5.1985. The case was investigated and ultimately the petitioner was challaned. He was charged for the aforesaid offence, to which he denied as incorrect and opted to contest. In order to substantiate the charge, the prosecution examined HC Ravinder Singh (PW1), Inspector Om Parkash (PW2), HC Harnek Singh (PW3), HC Charanjit Singh (PW4), Inspector Amar Singh (PW5), Inspector Udham Singh (PW6), HC Sagli Ram (PW7), HC Gurbinder Singh (PW8), HC Hans Raj (PW9) and SI (Retd.) Udham Singh (PW10). During examination under Section 313 Cr.P.C. The petitioner denied all the allegations and examined Baljeet Singh (DW1), HC Kewal Dass, Police Lines, Jalandhar (DW2) and HC Paramjit Singh (DW3). The trial ended in conviction. The appeal preferred by him also failed. Arguments heard. Record perused. The main plank of the argument advanced by the learned counsel for the petitioner is that the Malkhana was inspected twice in the year 1983 and then in 1984, but nothing short was found at that time. Secondly, that after he was suspended from the post, three Head Constables came and remained in-charge of the Malkhana, but none complained about the shortages. It was abruptly after three years he has been implicated in the case. During the aforesaid three years, the Government property must have changed many hands and requirement to produce the same must have arisen so many times but never a finger Crl. Revision No. 812 of 2002 -3- *** has been raised against him that the case property could not be produced for want of handing over of the charge by the petitioner. It was urged that arms and ammunition always remained in possession of the Superintendent of Police and he had nothing to do with the case property. There is no denying a fact that the petitioner while joining Moharrer Head Constable Police Station Sub Division No. 4, Jalandhar was handed over the charge vide Ex.PW-9/A. The petitioner was suspended after few days on the ground on his absence from duty on 25.8.1982. It would be pertinent to mention here that after his re- instatement on 17.11.1982, he was never posted in Police Station Sadar, Jalandhar, rather he was posted on general duty in Police Station Sub Division No.4 on 18.5.1983. No document has been produced if he was handed over any charge of Malkhana on 18.5.1983 or thereafter. Paramjit Singh (DW3) produced the inspection report of Police Station Division No.4, Jalandhar (Ex.DW3/A) for the year 1982 which reveals that arms and ammunition were found to be correct. Again, there is another document i.e. DDR No. 6 dated 27.6.1984 Ex.PW-4/C proved by HC Charanjit Singh which reveal that Inspector Gopal Singh having made checking of Malkhana made an entry in the register No.16 mentioning that the property lying in the Malkhana was complete. He found that some of the cartridges were not properly maintained and he had instructed the M.H.C. In-charge to keep the Malkhana in proper condition, therefore, in these circumstances, it cannot be said that at the time of inspection in the year 1985 some arms and ammunition were found to be deficient. Not only this, HC Ravinder Kumar (PW1) has categorically stated that after the petitioner was suspended MHC Gurmit Singh was posted and prior to him MHC Nanak Singh was posted at Police Station and thereafter Gurvinder Singh was posted. In these circumstances, when the Malkhana remained under the charge of three different Head Constables after the petitioner was suspended, it cannot be said that still the case property Crl. Revision No. 812 of 2002 -4- *** remained in the hands of the petitioner. HC Gurmit Singh has not been examined in order to establish if he was not handed over the charge by the petitioner. The onus to prove lies heavily upon the prosecution to establish that on the day of checking on 27.5.1985, the petitioner was in-charge of the property and he misappropriated the articles. As a matter of fact, the petitioner had left the charge in the year 1982 and custody of the Malkhana changed several hands. The property was usually issued from the Malkhana for producing the same into the courts and the property involved in many cases used to be added to the property already lying in the Malkhana during the said years, therefore, the petitioner could not be fastened with the liability of shortages which took place three years prior to the alleged checking, rather documents Ex.PW3/A, Ex.PW4/C and Ex.PW9/A clearly indicate regarding verification of the case property in the Malkhana even in his absence and in the presence of other M.H.Cs. posted in the Police Station Sub Division No.4, Jalandhar. The aforesaid documents were not given due consideration by the court before holding his guilt. As such, the impugned judgment has resulted into miscarriage of justice. In the wake of aforesaid discussions, this court reach the irresistible conclusion that the prosecution has failed to prove the charge against the petitioner. Consequently, I accept the petition, set aside the impugned judgment, acquit the petitioner of the charges framed against him and direct that he be set at liberty forthwith if not required in any other case. Fine, if any deposited by him, be refunded. March 10, 2009 (A.N. Jindal) deepak Judge