State of H.P. vs Mohan Lal Saran

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 25.11.2003 passed by the learned Chief Judicial Magistrate, Kinnaur at Recong Peo, whereby he acquitted the accused of having committed an offence punishable u/s 409 of IPC. The prosecution story in brief is that during the period from May, 1988 to October 1991, the accused was posted as a Forest Guard Chango Beat. In this capacity, he was in-charge of Chango Fuel Wood Depot of Maling Range. An audit inspection for the period from 1.4.1991 to 31.3.1993 was conducted some time in the year 1993 and as per this inspection during the period from 1.4.1991 in which the respondent-accused was in-charge of the Chango Fuel Wood Depot, he misappropriated 3,251.32 quintals of fuel wood, value of which amounting to Rs. 2,21,589.75 paise. After the audit inspection, a complaint was filed and on this basis, FIR was recorded. Thereafter the matter was investigated and the accused was charged with having committed the offence aforesaid. After trial, the learned trial Court acquitted the accused. Hence this appeal by the State.

As per the provisions of Section 409 IPC, it must be proved that there was entrustment of the property and the accused misappropriated the property which was entrusted to him. There is no dispute with regard to the fact that the respondent-accused in his capacity as Forest Guard was in-charge of Chango Fuel Wood Depot of Maling Range, District Kinnaur and therefore, was responsible to ensure that the wood which remained under his capacity was dealt with strictly in accordance with the rules. However, it was for the prosecution to prove what was the exact quantity of the wood which was entrusted to the respondent-accused and also what was the exact quantity of wood which was later found and finally what was the value of the wood which was misappropriated.

At the outset, we may state that the entire case of the prosecution is based on the audit report. This audit was conducted in September 1993 and by that time the respondent-accused was not in Chango since he had been posted from Chango to Kotgarh in the year 1991 vide office order dated 11th October, 1991 Ext. PW-14/C, therefore, in March 1992, which is part and subject matter of the audit report, he was not in-charge of the Depot. PW-14 in cross-examination admitted that they had not enquired from whom the wood was purchased and what was the amount of the wood which was taken into possession by the respondent-accused. It also stands proved that the pages from 3 to 11 of the sale and receipt register were missing. Thereafter some additional pages were affixed with gum at Page No. 34 of the same register. There were number of cuttings and over writing in the register in question. Therefore, the possibility of some other person having pilfered the wood and making entries could not be ruled out.

There can be no manner of doubt that in cases like the present, where the transactions are made in writing, the accused can be convicted even on the basis of documentary record also especially when the accused is the in-charge of the documentary record but when there are additions, alterations, cuttings, changes in the pages then the prosecution must show that all these cuttings, erasures, pages being removed and pages being added were done by the accused and no other person had the opportunity of doing this. Once the respondent-accused had left Chango and gone to Kotgarh the possibility of some other person having done the act cannot be ruled out. Therefore, it would be highly imprudent to convict the accused on the basis of the record which itself is not free from doubt. The learned trial Court also went on to hold that there is evidence on record that the wood was lying in an open place near the highway and the length of depot is almost 1 Km and the area is not fenced. These facts have been admitted by the Investigating Officer PW-10. PW-7 Tirath Raj who is DFO also stated that the shortage in question was there in the Depot since long. Therefore, it is clear that the accused may not be responsible for the loss and there may be other persons who are responsible for the same. Keeping in view all these factors, we are of the considered view that the learned trial Court was fully justified in acquitting the accused. Therefore, we find no merit in this appeal, which is accordingly dismissed. Bail bonds discharged.