Kiran Pal vs State of Haryana

This is revision against the judgment dated 16.12.2016, passed

by the learned Additional Sessions Judge, Ambala, affirming the judgment

of conviction and order of sentence dated 21.3.2012, passed by the learned

Special Railway Magistrate, Haryana, Ambala Cantt., vide which present

revisionist was held guilt under Section 409 IPC and was sentenced to

undergo rigorous imprisonment for two years and fine of Rs. 2,000/-, in

default thereof, to undergo further simple imprisonment for one month.

The facts of the case are that present revisionist was working as

Moharar Malkhana, Government Railway Police, Ambala Cantt. In

compliance of order/letter No. 20254-56, dated 20.5.2005, issued by

Superintendent of Police, Railway, Ambala Cantt., a committee consisting of

Kuldeep Singh, Deputy Superintendent of Police, Government Railway

Police, Ambala Cantt., Gurbachan Singh, Inspector and Surjit Lal,

Inspector, was constituted, which submitted its report on 3.7.2005. The

committee checked the case property lying in the Malkhana at Government

Railway Police, Ambala Cantt. It was found that UGC Kiran Pal is working

as Moharar for last many years. During the course of checking, many items

were found missing. It was also found that many articles were old one

regarding which, the cases have already been decided, but the same have not

been disposed of. Even the higher officers did not pay any attention to

check up the Malkhana, nor any note was given. From time to time, many

Moharars Malkhana were posted and they were transferred after some time.

It was also found that many years back, there were floods in Ambala and the

Police Station of Railway Police, Ambala Cantt. was flooded, due to which

water logging had taken place in GRPS, Ambala Cantt., as a result of which

one Constable Ram Chander, resident of Delhi, died. The room, in which

case property was kept, had collapsed. After removing the debris, many

items were recovered. Thereafter, in August, 2004, on 3.8.2004 again, there

were floods in Ambala, as a result of which, again building of Police Station,

Government Railway Police, Ambala Cantt. was flooded and many items

lying in the Malkhana were destroyed, regarding which immediate Inspector

Satpal, vide letter No. 238-5D, dated 28.2.2005, had sent the report that as a

result of the flood, 211 items of the NDPS Act have been destroyed. The

committee came to the conclusion that present revisionist was negligent, as

a result of which these items were destroyed in flood. Therefore,

departmental action was recommended against him. The departmental

action was also recommended against Inspector Satpal. It was also found by

the committee that Malkhana Register was also not properly maintained and

no superior officer took care of same. Rather, same came to the notice of

authorities on account of news item appeared in the newspaper, which

compromised the secrecy of the police. On the basis of said report, FIR No.

121, dated 6.7.2005, under Section 409 IPC at Police Station GRP Ambala

Cantt. was registered against revisionist. The investigation was carried out.

It was found that the committee has prepared the report of case properties

from the year 1972 to year 2001. Total items are 211, which were found

missing. During the investigation, the lists of the missing items (Ex.P4 to

Ex.P6) were prepared. It was found that 1538.125 kgs. poppy husk (as per

list Ex.P4), 173.730 kgs. opium (as per list Ex.P5) and 17.375 kgs. charas,

368.800 kgs. ganja, 6 grams smack (as per list Ex.P6), were missing. The

sanction for prosecution (Ex.P11) was obtained. The record (Annexure-P-

7/A) regarding posting of revisionist was also taken into possession. After

investigation, challan was presented in Court.

The then learned Special Railway Magistrate, Haryana, Ambala

Cantt. framed the following charge on 3.4.2007 :-

" I, Phalit Sharma, Special Railway Magistrate, Haryana, Ambala Cantt, do hereby serve you (Kiran Pal) with following chargesheet :- That you, on or about the 06.07.2005, within the are of railway station, Ambala Cantt, P.S. GRP, Ambala Cantt, being in any manner entrusted with property of various cases lying in Mal Khana being Mal Khana Incharge and in that capacity committed criminal breach of trust with respect to case property and that you thereby committed an offence punishable under Section 409 IPC and within cognizance of this Court. And, I hereby direct that you be tried by this Court on the said charge sheet."

In support of its case, prosecution examined SI Ram Chander

(PW1), HC Wailati Ram (PW2), HC Ashwani Kumar (PW3), HC Harkesh

Singh (PW4), Surjit Lal, DSP (Retd.) (PW5), Jee Ram Inspector(Retd.)

(PW6), SI Arjun Dev (PW7), Dr. M. Ravi Kiran (PW8) and Mam Chand

Inspector (Retd.) (PW9).

When examined under Section 313 Cr.P.C., accused pleaded

innocence and did not lead any evidence in defence.

After going through the evidence and hearing the prosecution

and accused, the learned Special Railway Magistrate, Haryana, Ambala

Cantt., convicted and sentenced the accused as aforesaid and his appeal was

dismissed by the learned Additional Sessions Judge, Ambala, as discussed

above.

I have the learned counsel for revisionist, the learned State

counsel and have minutely gone through the lower Court file.

At the very outset, it comes out that in the report under Section

173 Cr.P.C., the details of missing case property was given as detailed

above (as per lists Ex.P4 to P6). The learned Special Railway Magistrate,

Haryana, Ambala Cantt., while framing charge, has merely stated that

accused was entrusted with ''certain properties lying in the Malkhana'' being

Malkhana Incharge and in that capacity, he has committed criminal breach of

trust with respect to case property. However, the details of said case

property have not been mentioned, regarding which criminal breach of trust

has been committed. The details of said case property are given in lists

Ex.P4 to Ex.P6 and aggregate of each category of case property is also

mentioned. In the absence of details regarding case property, which were

entrusted and misappropriated, the charge framed by the lower Court is

defective and resulted in miscarriage of justice. It also comes out that

regarding same report, three different FIRs were registered against

revisionist, which were tried separately.

Now, the question would arise as to whether for the defective

charge, the case should be remanded back or this Court should proceed with

the mater - For that purpose, this Court will proceed to go through the case

file and see whether there is substance in the allegations, levelled against

revisionist -

As per the posting record (Ex.P7/A), revisionist was posted in

the Malkhana on 22.12.1995 and was suspended from service on 13.1.2006.

Later on, he was recorded to be dismissed from service with effect from

10.8.2007, which means that from year 1995 onwards, revisionist remained

Incharge of the Malkhana. Now, look at the list Ex.P4, which shows that

these pertain to the cases registered from the year 1975 to year 2001. List

Ex.P4 is regarding poppy husk weighing 1538.125 kgs., which was found

missing. Similarly, regarding opium, list Ex.P5 shows the cases registered

from year 1972 to year 2001, wherein one case is of 10.7.1995 and the other

is of 1.11.2001. The total missing opium is 173.730 kgs. Similarly, as per

list of charas Ex.P6, the cases were registered from the year 1977 to year

1996 and one case is of 10.11.2001 regarding 5 gram missing charas. The

total missing charas is 17.375 kgs. Regarding ganja, the cases were

registered from year 1985 to year 2001 and one case is of 26.10.2001

regarding 365 kgs. ganja. The case regarding 6 gram smack was registered

on 14.3.2001.

Revisionist was posted as the Head Malkhana in the year 1995.

Therefore, regarding case property deposited before year 1995, prosecution

was required to prove that before the year 1995, said case property was in

the Malkhana and was entrusted to Kiran Pal (revisionist) when he took over

the charge for the first time on 22.12.1995. Infact, the report of committee

(Ex.PW5/2) itself shows that earlier there was flood in Ambala, as a result

of which Railway Police Station was flooded and one Constable Ram

Chander had also died due to flood. The room where the case property was

stored had fallen down and after removing the debris, many items were

found in damaged condition. Again on 3.8.2004, there was flood in

Ambala and again building of Railway Police Station was flooded and

many case properties were destroyed.

In this case, it has not come on record as to which case property

was destroyed, as a result of flood which occurred on 3.4.2004 and prior to

that as well. The fact that prior to 2004, in the flood one Constable died,

goes to show the magnitude of flood. It also comes out that even the

building of Malkhana had collapsed and many items were destroyed. It

goes to show that many items were destroyed in flood, which occurred prior

to 2004 and many items were destroyed in the floods on 3.4.2004.

Now, question is as to whether revisionist can be held guilty for

offence of misappropriation of the said case property mentioned in the lists

Ex.P4 to Ex.P6, which is prior to flood of 3.8.2004 and a flood before that

and findings can be recorded that he has criminally misappropriated those

articles -

I am of the view that guilt of accused has not proved beyond all

reasonable doubts. The prosecution has relied upon the disclosure statement

(Ex.PW9/B), in which revisionist admitted that he had sold poppy husk,

ganja, opium etc. to some addicts and that he has deliberately reported that

case property of 211 cases has been destroyed in the flood. Such disclosure

statement cannot be relied upon under Section 27 of the Evidence Act since

no recovery was effected in pursuance thereof. When the flood had occurred

before 2004 and then on 3.8.2004, the department should have carried out

a thorough inquiry to find out, which articles were lying in the Malkhana and

which articles were damaged/destroyed/washed away due to flood. Infact,

the Incharge of Police Station had reported that the case property of 211

cases has been destroyed in the floods. In the criminal cases, the burden to

prove the charge is of higher standard i.e. proving the case beyond all

reasonable doubts. It is sufficient for accused, if he is successful in raising

reasonable doubt about the prosecution case. In this case, prosecution

should have proved that the articles mentioned in lists Ex.P4 to Ex.P6 were

entrusted to revisionist when he joined duties on 22.12.1995 and that he has

criminally misappropriated the same and not destroyed due to floods, which

in case of first flood resulted in the collapse of the building of the

Malkhana, resulting in destruction of many articles and death of one

constable and at the time of second flood on 3.8.2004 likely to result in

destruction of the case property lying in Malkhana. Unluckily, the evidence

was not critically examined by the learned Special Railway Magistrate,

Haryana, Ambala, as well as by the learned Additional Sessions Judge,

Ambala. The poppy husk, smack, opium, ganja and charas from its nature

can be damaged or destroyed or washed away due to floods. Therefore, I am

of the view that prosecution could not prove that the articles mentioned in

lists (Ex.P4 to Ex.P6) were criminally misappropriated by present

revisionist. Once, this Court comes to the conclusion that offence under

Section 409 IPC is not proved, then on account of defective charge, the case

need not be remanded to trial Court and can be decided by this Court.

In view of foregoing discussion, revision is allowed. The

judgment dated 16.12.2016, passed by the learned Additional Sessions

Judge, Ambala, and the judgment of conviction and order of sentence dated

21.3.2012, passed by the learned Special Railway Magistrate, Haryana,

Ambala Cantt. are hereby set aside and revisionist stands acquitted of charge

framed against him under Section 409 IPC. Revisionist be released

forthwith, if not required in any other case.