Phida HussaIn Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - 7,623/- to neelam prasad (pw3), the peon, for being kept in the safe located in the room adjoining his office. accordingly, neelam prasad put the money in the safe; p-8) at police station bhalumada to the effect that the branch was burgled in the preceding night and the doors of the room, wherein the safe was installed, was also found open. in his examination, under section 313 of the code of criminal procedure, he further asserted that one set of keys of the safe was seized from neelam prasad. the question, therefore, is as to whether the finding that appellant committed breach of trust in respect of the money, was well merited in the case of evidence on record? 9. adverting to the explanation, it may be observed that the probability of its veracity was established from the following admissions made by the key witness neelam prasad (pw3). (i) it was he who had locked the safe as well as the room wherein it was located. 10. chandrabhan singh (pw1), the owner of the house wherein the branch of the bank was situated, and motilal (pw2), whose shop is situated affront, also corroborated the fact that locks on doors of the rooms of the bank and the safe were found open. d-1) contains a categorical finding that the appellant was negligent in ensuring a proper and safe custody of the keys of the safe and the room wherein it was located. state of punjab air 1966 sc 97 :1996 cri lj 82 referred to). 14. to sum up, though, the entrustment of the sum was admitted its dishonest misappropriation or conversion or use within the meaning of section 405 of the ipc was not proved beyond a reasonable doubt whereas probability of the defence was clearly established.r.c. mishra, j.1. the appellant stands convicted under section 409 of the ipc and sentenced to undergo r.i. for 2 years and to pay a fine of rs. 1000/- and in default, to suffer r.i. for 3 months. the corresponding judgment passed on 4-4-1994 by second additional sessions judge, shahdol in s.t. no. 171/90 is the subject-matter of challenge in this appeal.2. at the relevant point of time, the appellant was posted as assistant cashier-cum-clerk in the phunga branch of kshetriya grameen bank, shahdol. he was tried upon charges of the offences punishable under sections 450 and 409 of the ipc. admittedly, the state has not preferred any appeal against acquittal of the appellant in respect of the offence under section 450 of the ipc. on the contrary, an application for leave to compound the offence under section 409, ipc has been moved on behalf of the manager of the bank (now known as satpura narmada kshetriya grameen bank) on the ground that in the departmental enquiry, the appellant was not found guilty of misappropriation of the amount in question.3. prosecution story, in short, may be narrated as under:(i) on 5-2-1986, while officiating as branch manager, the appellant gave an amount of rs. 7,623/- to neelam prasad (pw3), the peon, for being kept in the safe located in the room adjoining his office. accordingly, neelam prasad put the money in the safe; locked it and after putting a lock on door of the room, handed over keys to the appellant. the keys to the manager's office used to remain with the peon only.(11) on the following day, the appellant lodged a report (ex.p-8) at police station bhalumada to the effect that the branch was burgled in the preceding night and the doors of the room, wherein the safe was installed, was also found open. thereupon, a case under section 457 of the ipc was registered. however, the appellant voluntarily made an extra-judicial confession about the taking of money before b.m. tirthani (pw5), the then chairman of the bank and undertook liability to reimburse the loss caused to the bank. accordingly, the case was converted to one under section 409 of the ipc. during investigation, a sum of rs. 7,623/- produced by the appellant was duly seized. his personal diary and a letter indicating that the appellant had proposed to purchase a camera from agarwal colour studio, jabalpur were also seized.(iii) upon completion of the investigation, charge-sheet in respect of the offences punishable under sections 457 and 409 of the ipc was submitted in the court of jmfc, kotma, who observing that prima facie the offence under section 450 of the ipc was also made out, committed the case to the court of session for trial.4. on being charged with the offences punishable under section 450 and 409 of the ipc, the appellant pleaded not guilty. in his examination, under section 313 of the code of criminal procedure, he further asserted that one set of keys of the safe was seized from neelam prasad.5. to bring home the charges, the prosecution examined as many as 6 witnesses including the key witness neelam prasad kevat (pw3) and b. m. tirthani (pw5). the defence also called the successor chairman of the bank namely p. c. jaiswal to prove the findings of departmental enquiry.6. in view of the admission made by appellant that the amount of rs. 7,623/- was in his dominion in the capacity of in-charge bank manager, the matter lies in a very narrow compass. the question, therefore, is as to whether the finding that appellant committed breach of trust in respect of the money, was well merited in the case of evidence on record?7. a close scrutiny of the impugned judgment would reveal that the learned trial judge proceeded to convict the appellant of the offence under section 409 of the ipc on the basis of the following incriminating pieces of evidence:(i) extra-judicial confession.(ii) falsity of the explanation given by the appellant.8. b.m. tirthani (pw5), being the chairman of the bank, was the person in authority before whom the appellant had allegedly admitted his guilt and prayed for saving his services from termination. however, as admitted by the chairman, the confession was made in the immediate presence of sub-divisional officer of police and that too in the police station only. as such, the extra judicial confession was apparently not admissible in evidence.9. adverting to the explanation, it may be observed that the probability of its veracity was established from the following admissions made by the key witness neelam prasad (pw3).(i) it was he who had locked the safe as well as the room wherein it was located.(ii) the appellant had left the bank at about 4 p.m. on 5th of february 1986 for kotma and returned on the following day at about 10 p.m., whereas keys of the lock put on the door of the outer room, used as office of the manager, remained in his possession only.(iii) on 6th of february, when he reached the bank, he noticed that doors of both the rooms of the bank were open and on being apprised of the fact, the appellant went to the police station for reporting the incident.10. chandrabhan singh (pw1), the owner of the house wherein the branch of the bank was situated, and motilal (pw2), whose shop is situated affront, also corroborated the fact that locks on doors of the rooms of the bank and the safe were found open. there was nothing to suggest that currency notes seized by investigating officer satyavrat pandey (pw6) from the possession of the appellant were of the same denominations as entered in the corresponding record. further, no evidence was collected to establish that the amount was to be utilized by the appellant in purchasing a camera. for these reasons, the explanation rendered by the appellant as to theft of the amount could hot be termed as absolutely false.11. the report of departmental enquiry (ex.d-1) contains a categorical finding that the appellant was negligent in ensuring a proper and safe custody of the keys of the safe and the room wherein it was located. accordingly, he was penalized with stoppage of two increments and was also directed to indemnify the loss caused to the bank.12. learned senior counsel, while inviting attention to the relevant extract of the decision of the apex court in p.s. rajya v. state of bihar : (1996) 9 scc 1, has contended that the findings of the departmental enquiry initiated upon the same charge further substantiated the defence of the appellant. the contention deserves acceptance as the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. as an obvious corollary, the acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in the criminal case.13. it is the cardinal principle of criminal jurisprudence that the mode of proof, by standard of benefit of doubt, is not applicable to the accused where he is called upon to prove his defence. it would be sufficient for him to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the court (harbhajan singh v. state of punjab : air 1966 sc 97 : 1996 cri lj 82 referred to).14. to sum up, though, the entrustment of the sum was admitted its dishonest misappropriation or conversion or use within the meaning of section 405 of the ipc was not proved beyond a reasonable doubt whereas probability of the defence was clearly established. the trial judge, therefore, completely misdirected himself in holding appellant guilty of the embezzlement.15. in the result, the appeal stands allowed. the impugned conviction and consequent sentences passed against the appellant are hereby set aside. instead, he is acquitted of the offence. fine amount, if deposited, be refunded to him.16. the appellant is on ball. his bail bonds shall stand discharged.