State vs Shamsher Singh
2020 Latest Caselaw 1421 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 03.03.2020
+       CRL.A. 1405/2019 and CRL.M.A. 17594/2016
        STATE                                        ..... Appellant

                          versus

        SHAMSHER SINGH                               ..... Respondent

Advocates who appeared in this case:
For the Appellant         : Mr Amit Gupta, APP for State.
                            SI Banay Singh, PS Kirti Nagar.
For the Respondent        : Mr R.S. Rana, Advocate.

                             JUDGMENT

VIBHU BAKHRU, J

1. The present appeal arises out of the judgment dated 10.06.2016 passed by the Learned ASJ, West, Tis Hazari Courts, whereby the respondent's appeal against a judgment dated 27.03.2015 and the order on sentence dated 27.05.2015 convicting him for an offence punishable under Section 409 of the Indian Penal Code, 1860 (IPC) was allowed and he was acquitted of the offence for which he was charged.

2. By way of the impugned judgment, the learned ASJ also set aside the order on sentence dated 27.05.2015, whereby the respondent was sentenced to undergo rigorous imprisonment of three years and to pay a fine of ₹10,000/- for the offence punishable under Section 409 of the IPC.

3. The case set up by the prosecution is that on 02.07.2003, the respondent, who was posted as Head Constable at PS Kirti Nagar, was issued a 9 mm pistol having body no. 1621-7120 with butt number DP 5918, alongwith 10 live cartridges. It is alleged that on 07.07.2003, HC Vinay - MHC(M) of PS Kirti Nagar - came to know that the respondent has not returned the pistol and live cartridges and the same was recorded by HC Vinay through a diary entry DD no. 44B dated 07.07.2003. Thereafter, HC Dalbir was sent to the house of the respondent and after his return, he disclosed that the respondent had suffered injuries. According to HC Dalbir, the respondent had informed him that as a result of falling down, his pistol got damaged and he would deposit the same after getting it repaired. It is further alleged that several visits were made to the respondent's house by police officials but the respondent did not deposit the said pistol and the cartridges at the police station.

4. A chargesheet was filed after the conclusion of investigation. A charge for the offence punishable under Section 409 of the IPC was framed against the respondent, to which he pleaded not guilty and claimed trial.

5. The prosecution examined fifteen witnesses to prove its case. By a judgment dated 27.03.2015, the learned MM convicted the respondent/accused, by a judgment dated 27.03.2015, under Section 409 of the IPC. Further, by an order dated 27.05.2015, the respondent/accused was sentenced to undergo rigorous imprisonment

for a period of three years and to pay a fine of 10,000/- and in default of payment, to undergo simple imprisonment for ten days.

6. The respondent filed an appeal against the judgment dated 27.03.2015 and 27.05.2015, whereby his conviction and the order on sentence was set aside by way of the impugned judgment. The Sessions Court, after perusing the evidence as obtaining in the case, held that the accused had given a reasonable and probable explanation as to the disappearance of the pistol and cartridges which were assigned to him. It further held that the pistol and cartridges could not be recovered despite the investigation carried out by the police and further there was no allegation regarding the misuser of the pistol and the cartridges by the accused. The Court observed that the act of the accused seemed to fall in the category of "carelessness or neglect in discharge of official duty rather than criminal misappropriation" and that carelessness cannot be treated as an act of dishonest intention or criminal breach of trust.

7. In view of the above, the Sessions Court acquitted the respondent (accused) of the offence he was charged with.

Evidence

8. Before proceedings further, it is relevant to briefly examine the evidence led by various witnesses.

9. HC Mahaveer, who was posted as Duty Officer at PS Kirti Nagar from 12 pm to 8 am, was examined as PW1. He deposed that on

the intervening night of 18/19.07.2003 at about 2:30 am, he received one complaint given to him by SHO, for registration of an FIR under Section 409 of the IPC. Accordingly, he recorded FIR no. 300/2003 (Ex.PW1/A) and also made an endorsement on the rukka (Ex.PW1/B).

10. Ct Sheesh Pal, who was posted as Munshi, Malkhana at PS Kirti Nagar, was examined as PW2. He deposed that on 02.07.2003, he had issued a pistol to HC Shamsher Singh (the respondent), at about 8:30 am, with butt number DP 5918 alongwith 10 live cartridges and obtained his signatures in the register.

11. ASI Jai Parkash, who was posted at PS Kirti Nagar, was examined as PW3. He deposed that on 16.07.2003, the SHO informed him that HC Shamsher was issued an official revolver alongwith ten live cartridges but he was absent and had not been reporting to duty since 07.07.2003. Consequently, on the directions of the SHO, PW3 visited the respondent's residence at Village Nilothi, Delhi to make enquiries, where he met his brothers and mother who informed PW3 that the respondent had gone to some hospital for the treatment of the injuries suffered by him. It was further deposed that PW3 asked the respondent's brothers to inform him to report to the police station on his return and deposit the official pistol. Thereafter, PW3 came back to the police station and informed about the same to the SHO and his statement was recorded by the IO.

12. In his cross-examination, he stated that he mentioned about his visit to the accused's residence on the DD made by the DO. On

20.07.2003, he also made a statement before SI Dinesh regarding the aforesaid visit. However, he denied remembering whether he had mentioned the mother and brothers of the accused in his statement recorded by the IO. Further, he stated that he did not remember whether he had stated the fact that the respondent/accused must be sent to PS on his return from the hospital.

13. HC Vijay Singh, who was posted as MHC(M) at PS Kirti Nagar, was examined as PW-4. He deposed that on 02.07.2003, a 9 mm pistol along with ten live cartridges were issued to the accused. He stated that the said pistol was not deposited by the accused and thereafter, on 07.07.2003, he found out vide DD no. 44B that the accused is absent. Thereafter, he informed the SHO about the fact that the said Asla was issued to the accused on 02.07.2003. He deposed that consequently, on the directions of the SHO, HC Dalbir Singh visited the village of the accused where the accused informed him that he was injured and the said pistol had fell off; it was broken and he would deposit the same to malkhana after getting it repaired. Thereafter, a couple of visits, on 16.07.2003 and 17.07.2003, were made to the accused's house by ASI Jai Parkash and HC Dalbir respectively, but he was not found there. It was deposed that thereafter, PW4 made a written complaint to the SHO (Ex.PW4/A). On 20.07.2003, SI Dinesh Kumar prepared a site plan at the instance of PW4. It is deposed that the pistol was issued by SI Dinesh on the instructions of PW4 after making an entry in Asla register by Ct Shish Pal.

14. In his cross-examination, PW-4 stated that the pistol was issued to the accused on 02.07.2003 on a daily basis and the said pistol was to be deposited back in the malkhana on 02.07.2003 at the end of the duty. He stated that the arms were issued to the employees on permanent duty for a week or so. He stated that as the accused was on permanent duty, he was not required to check the deposit of the arms back every day. Further, PW4 denied having any knowledge about the visit of HC Dalbir Singh to the accused's house on 07.07.2003. He further denied that he had any knowledge about the visit of HC Dalbir to the house of the accused on 17.07.2003.

15. HC Dalbir was examined as PW5. He deposed that on 07.07.2003, on the directions of the SHO, he had gone to the house of the accused in afternoon where he met the accused. He informed PW5 that the pistol had fell off and as a result, it was broken and he would deposit the same after getting it repaired. It was further deposed by PW-5 that he noticed that the accused was in an injured condition. On 17.07.2003, he again visited the house of the accused but he was not found there.

16. In his cross-examination. He stated that he remained at the accused's house for fifteen minutes. The accused met him in the outside room of his house and at that time, he was alone. The accused had sustained injuries on his mouth and shoulder and he was in pain, however, he was in a condition to come with him outside the house. The accused also did not disclose about how he sustained those injuries.

17. HC Paras Ram was posted as constable at PS Kirti Nagar and he was examined as PW6. He deposed that on the intervening night of 06/07.07.2003, the accused was posted at PS Kirti Nagar and he had to perform his duty as Duty Officer with effect from 12 am to 8 am. However, the accused did not join his duty that night and HC Ram Chander was deputed as duty officer in place of the accused. After waiting for a considerable period, at around 2:15 am, an entry (DD No. 44B) was made by PW6 regarding the absence of the accused from his duty.

18. ASI Ram Chander, who was posted the PS Kirti Nagar on the intervening night of 06/07.07.2003, was examined as PW-7. He deposed that on that night, on the instructions of the SHO, he was deputed as duty officer from 2:00 am - 8:00 am. It is deposed that HC Shamsher was deputed as duty officer with effect from 12:00 night to 8:00 am, however, he had not joined his duty on that night. Therefore, the said duty was assigned to PW-7 at about 2:00 am.

19. Sh Harshwardhan was posted as SHO at PS Kirti Nagar in the month of July, 2003 and he was examined as PW8. He deposed that on 07.07.2003, it was informed by HC Vijay Singh that one 9 mm pistol was issued to the accused for duty on 02.07.2003 but after the completion of duty, the same was not deposited by him in malkhana. Moreover, the accused was running absent from duty after 02.07.2003. Consequently, on his directions, HC Dalbir had gone to the accused's house in village Nilothi, who after returning from his visit reported that the accused had received some injuries. He further reported that

the accused had told him that the said pistol was damaged and he had given it for repairing. He assured HC Dalbir that he will deposit the same in malkhana as early as possible. However, the accused remained absent from duty till 16.07.2003 and subsequently, ASI Jai Parkash was sent to his house for enquiries. It is further deposed that on his return, ASI Jai Parkash told PW-8 that the accused was not found at his house and his family members had stated that he had left the house without disclosing the reason for the same. Similarly, next day, HC Dalbir was sent to the accused's house but again he was not found there. It is deposed that on 19.07.2003, a written complaint was made by HC Vijay Singh (Ex.PW4/A).

20. In his cross-examination, PW-8 stated that he was unable to recollect as to whether the accused had filed a complaint dated 22.12.2003 to the Commissioner of Police regarding the incident and which was also marked to the police station and to Incharge Police Post on 23.12.2003.

21. HC Rameshwar, who was posted as constable at PS Kirti Nagar, was examined as PW10. He deposed that on 02.07.2003, he and the accused were patrolling from 8 am to 8 pm. One 9 mm pistol was issued to the accused on that day from the malkhana and the same remained in his possession till completion of their duty on that day.

22. SI Prahlad Singh, the investigating officer was examined as PW14. He deposed that on 09.07.2004, he arrested the accused and thereafter, he was sent to judicial custody by the court. During

interrogation, it was told by the accused that on the night of 06.07.2003, he had quarrelled with 4-5 boys at Uttam Nagar Chowk near Terminal. However, on verification, no such incident was found to be reported at PS Uttam Nagar. Further verifications were made from the public persons from the spot to know about the incident but no one could reveal anything.

23. PW-14 was cross examined, wherein he stated that he had asked the accused about the copy of the complaint made by him, but the accused failed to produce the same. A document dated 07.07.2003 was produced by the counsel for the defence (Mark DA). It was deposed by PW-14 that the said document was not produced by the accused during investigation. During the cross-examination, a photocopy of the document collectively marked as Mark DB was submitted by the defence counsel and it was showed to PW-14, to which he replied that the said document was not received by him during the investigation.

24. Inspector Dinesh Kumar was posted at PS Kirti Nagar on 19.07.2003 and he was examined as PW15. He deposed that on 19.07.2003, the duty officer handed over the rukka to him and a copy of the FIR for investigation as per the instructions of the SHO. On 20.07.2003, MHC(M) HC Vijay Singh, SHO Inspector Harshvardhan, HC Dalbir Singh and ASI Jai Parkash were interrogated by him and their statements were recorded under Section 161 of the Cr.P.C. It is deposed that on 07.08.2003, he interrogated the accused at the police station. During the interrogation, the accused stated that on the intervening night of 02/03.07.2003, he was present near Uttam Nagar

market with the said pistol and ten live cartridges. At that time, he was beaten by 5-6 persons; resultantly, he was injured and became unconscious at the spot. He further stated that he regained his consciousness in the morning hours and found that his service pistol and the cartridges were missing. Later, he received treatment from Dr. Inderjeet Kalra (DW-1) at a nursing home at Vikaspuri. It is further deposed by PW15 that he made local enquiries about the alleged incident as narrated by the accused but no such incident was found to have happened. On 12.09.2003, Dr Kalra was interrogated by PW15. She stated that the accused had gotten treatment from his clinic. Further, PW15 also moved an application for polygraph test of the accused.

25. In his cross-examination, PW-15 stated that during investigation, the accused had not disclosed about the complaint dated 07.07.2003 made by him to SHO Uttam Nagar. He further stated that he did not remember as to whether he had joined any enquiry regarding the complaint dated 15.09.2003 filed by the accused before the Commissioner of Police. He further stated that on 19.07.2003, Dr Inderjeet Kalra had given him a letter showing that on 07.07.2003, HC Shamsher Singh had visited him for treatment (Ex.PW15/D1). PW-15 stated that on 07.08.2003, the accused while his interrogation in departmental enquiry, had given one written statement addressed to the SHO and the copy of the same was marked as AX. He stated that he had made enquiries about the contents of the said statement and the same were not found to be correct.

26. Dr Inderjeet Kalra was examined as DW-1. He deposed that on 07.07.2003, the accused had come to his clinic and he had injuries on his mouth and hand. He was medically treated by DW1 and was advised to take an X-ray of his right shoulder, right hand and little finger at Agarsain Hospital.

27. In his cross-examination, DW-1 stated that he had not examined the accused and that is the reason as to why he was not aware of the X-ray report.

Reasons and Conclusion

28. In order to sustain a conviction of an offence under Section 409 of the IPC, it is necessary for the prosecution to establish two ingredients. First, that there was entrustment of property; and second, the property had been dishonestly misappropriated or converted by the accused for his own use. In the present case, there is no dispute that the weapon (pistol bearing no. DP-5918 along with 10 live 9 mm rounds) was entrusted to the respondent (H.C. Shamsher Singh) on 02.07.2003, at about 8:30 pm, in order for him to perform his duty. Ct. Sheesh Pal (PW2) had deposed to the aforesaid effect. He produced the original register (Ex.PW4/A), which recorded the entry at serial no.1. Respondent's signatures also bear against the said entry.

29. The respondent had also admitted in his statement under Section 313 of the Cr.P.C. that he had been issued the fire arm and cartridges in question. The controversy in the present case, essentially, relates to

whether the second ingredient for sustaining the allegation of offence under Section 409 of the IPC, is established; that is, whether the respondent had misappropriated or converted the said weapon for his own use or to the detriment of the government.

30. The prosecution is not required to establish by any positive evidence, the actual manner or mode in which the property had been misappropriated. There is merit in the contention of Mr Amit Gupta, the learned APP, that the prosecution need not prove by any positive evidence that the weapon in question had been converted or misappropriated by the accused. The question whether the respondent is guilty of misappropriation or converting the property entrusted to him could be determined by examining the falsity or the truth of the explanation provided by him.

31. In Mustafikhan v. State of Maharashtra: (2007) 1 SCC 623, the Supreme Court had observed as under:-

"12. It was submitted for the first appellant that the sentence passed against him was unduly severe, and that in any event, no distinction should have been made between him and the second appellant in the matter of sentence. It is evident on the findings accepted by us that property of considerable value has been misappropriated by the first appellant. He was the Managing Director of the company and primarily, he had dominion over the property entrusted to the company. The second appellant was, though a Director, essentially a technician. Having regard to these circumstances, if the High Court has made a distinction between the two appellants, we ought not to interfere

with the sentence, which by itself cannot be said to be excessive."

(emphasis supplied)

32. In Jaikrishandas Manohardas Desai and Another v. State of Bombay: (1960) 3 SCR 319, the Supreme Court had explained the above principal in the following words:-

"....to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made."

33. In the present case, there is little doubt that the explanation provided by the respondent does not inspire much confidence. The pistol in question was issued to the respondent on 02.07.2003 and the

same was required to be deposited back after completion of duty in the malkhana, on 02.07.2003 itself.

34. PW4 (HC Vijay Singh) had testified that fire arms are issued on day to day basis and were to be deposited back in the malkhana on daily basis. He also testified that the respondent was on a permanent duty and he was not required to check the deposit of the arms every day. It is an admitted that the respondent was required to report for duty on the intervening night of 6/7.07.2003 but he had not done so. A DD Entry being DD No. 44B dated 07.07.2003 (Ex.PW6/A), recorded that the respondent had not reported for duty - which was from 12 at night to 8 am - without informing the authorities in any manner.

35. HC Dalbir (PW5) had deposed that on 07.07.2003, he had visited the village of the respondent on the instructions of the SHO. He further deposed that the respondent had informed him that due to fall of the pistol, the same was broken and he would get it repaired and deposit the same. He confirmed that he had seen the respondent in an injured condition. In his cross-examination, he had stated that he reached the house of the accused in the afternoon of 07.07.2003 and remained there for about fifteen minutes. He stated that he met with the accused in the outer room at his home and at that time, he was alone. He confirmed that the accused had sustained injuries on his mouth and shoulder. He was in pain but was in a position to move and come out with him outside the house. Thus, according to the testimony of PW5, the accused had acknowledged that the weapon in question was with him.

36. It is established that the accused was required to deposit the weapon in malkhana but had not done so. Instead, he had retained the weapon in his possession.

37. Inspector Dinesh Kumar (PW15) had deposed that he was handed over a rukka and a copy of the FIR for investigation as per the instructions of the concerned SHO on 19.07.2003. He also stated that he interrogated various officials (HC Vijay Singh, SHO Inspector Harsh Vardhan, HC Dalbir Singh, ASI Jai Prakash) as well as the respondent. He was cross-examined by the learned counsel appearing for the accused and was shown a written statement addressed to the SHO by the respondent.

38. He confirmed that on 07.08.2003, while the accused was being interrogated, he was provided one written letter (mark AX) addressed to the SHO by the respondent. There is no evidence that such a letter had been furnished to the SHO. But, it is clear that it was the respondent's case that he had submitted such a letter. The said letter does not bear any date. However, the respondent had stated in the said letter that after completing his duty on 06.07.2003, he had gone to deposit the pistol in the malkhana but the same was closed. He also looked for the malkhana incharge but could not find him. He stated that he was in a hurry because his child was ill and it was also his child's birthday. And, therefore, he carried the pistol with him. He stated that on the intervening night on 6/7.07.2003, he was required to join the duty at 12 o' clock and he had left his home at 10 o' clock for the said purpose. On the way, he met his friend Govind who lives in

Najafgarh. He stated that he gave him a lift and got down from the scooter at around Uttam Nagar. The respondent told him to continue and would go for his duty on his own. He stated that thereafter, he was waiting to board the bus to report for his duty when was surrounded by five or six boys. They had assaulted him; broken his two teeth; fractured his finger; and fractured his neck bone. He had lost consciousness and he regained the same at around 04:00 a.m. in the morning and found that his pistol was not with him and the string had been cut. He stated that he also did not have any money and resultantly, he became quite anxious and started searching for his pistol. After extensively searching the same in vain, he somehow reached the clinic of Dr. Inderjeet Kalra and was treated by him. He stated that he did not inform this to anybody (ye baat mene kisi ko nahi bataai) and had attempted to search for the weapon on his own.

39. The aforesaid letter had been put to the witness (PW15) at the instance of the accused. Thus, it is assumed that the events as narrated in the letter is also the explanation of the respondent. The said letter raises several doubts, as it runs contrary to the explanation provided by the respondent. As noticed above, the letter is undated. However, more importantly, it states that the respondent had not reported the incident to anybody. This is contrary to his stand that he had filed a complaint with the Uttam Nagar Police Station.

40. During cross examination of PW14 (Inspector Prahlad Singh), the learned counsel for the accused had submitted photocopies of certain documents that were marked as DB. However, PW14 had

stated that he had not received the same during the investigation. The said documents included letter dated 15.09.2003, purportedly addressed by the respondent to the Commissioner of Police.

41. Although the said letter has not been proved, nonetheless, it requires to be examined as the same was produced by the respondent. In the said letter, the respondent had stated that he was required to reach Police Station Kirti Nagar at 11 p.m. on 06.07.2003. He stated that on that day, there was a little party at his friend's house and he had consumed one bottle of beer and thereafter, his friend had dropped him at Uttam Nagar bus stand near Machhi Market. He stated that while he was waiting for a bus at about 10:30 p.m., suddenly four to five persons picked up a quarrel with him and started beating him. He stated that in the said brawl, his collar bone and finger bone were fractured and two of his teeth were also broken. He stated that he became unconscious. He gained consciousness at about 05:00 am and he found that his pistol and ten live cartridges had been stolen. He claimed that he tried to find out but he had suffered injuries and could not move. He somehow reached his house and got medical treatment. He stated that HC Dalbir also visited his house and he informed him about the incident. He remained on bed rest due to his injuries.

42. It is at once clear that the respondent's stand in this letter is in variance with his letter marked as "AX". In the letter marked as AX, there is no mention of the respondent attending any party or being dropped by his friend at the bus stand. As per the letter marked "AX", the respondent was on his way to the police Station and had got down

from the scooter near Uttam Nagar and while he was waiting for the bus, he had been surrounded by five or six boys who had beaten him up. His defence, which is reflected in his statement recorded under Section 313 of the Cr.P.C. is completely different. His response to question no. 22 is material and is set out below:-

"Q. No. 22 Do you want to say anything else?

Ans. I am innocent. On the night of 06.07.2003, I had a fight with some three wheeler/auto drivers. Then, 5/6 other persons also joined them. I became partly unconscious. Some police officials were standing on the other side of the road i.e. opposite Uttam Nagar Bus Terminal and the said police officials saved me. They took me to Uttam Nagar police station, but they did not do anything and said that since I am an instructor, I will be better in few moments. I regained consciousness at about 5:00am. I went to the Duty Officer of PS Uttam Nagar and found that the belt for holding the weapon was cut and the pistol was missing. I tried to find out the same but I could not find it out. The Duty Office whose name I do not remember told me that the night patrolling shift had not arrived and if the pistol is missing then it will be in their possession and I should wait for sometime. I requested the Duty Officer to inform my police station about the incident. The Duty Officer gave information about the incident in PS: Kirti Nagar. I also wrote an application in PS: Uttam Nagar and it was duly received in PS Uttam Nagar after making entry in roznamcha register. The duly stamped copy was given to me. On 17.07.2003, I sent a registered letter to DCP West and informed about the incident in detail. On 19.07.2003, I was suspended from service."

43. According to the respondent's above stand, he had gone to PS Uttam Nagar and had reported the incident. Before the Court, he stated that he was saved by certain police officials who were standing on the opposite side and had brought him to Police Station Uttam Nagar.

44. Inspector Prahlad Singh (PW14) was also cross-examined and was shown a carbon copy of a document (which was marked as DA). He denied that the said document had been produced during investigation. The said document bears the stamp of Police Station Uttam Nagar. The document marked DA is the respondent's complaint to Police Station Uttam Nagar, wherein he has reported the alleged incident. The said document remained unproved. The question whether the said document was received by Police Station Uttam Nagar could not be verified as the records for the said period had been weeded out.

45. It is also relevant to note that after the alleged incident, the respondent had not proceeded to any government doctor/hospital for his MLC. According to him, he had proceeded to Dr. Interjeet Kalra (who deposed as DW1). DW1 testified that he had treated the respondent on 07.07.2003 and had advised him to get an X-ray. It is relevant to note that the respondent had got his X-ray done on 24.07.2003 at Maharaja Agarsain Hospital. The said X-ray report indicates that the respondent had suffered a fracture of his middle phalanx of right little finger and of right clavicle.

46. It is clear from the above that the respondent had suffered injuries on 6/7.07.2003. The fact that he was injured was also confirmed by PW5 (HC Dalbir Singh), who had visited the respondent on 07.07.2003. The medical records also clearly establish that the respondent had suffered the said injuries. However, the versions given by the respondent as to how he had received the said injuries are not consistent. His letter allegedly sent to the SHO (Marked as AX) is in variance with his letter dated 15.09.2003 purportedly sent to the Commissioner of Police (marked DB). Both of these letters are contrary to his complaint allegedly made on 07.07.2003, marked as DA. Thus, undoubtedly, the respondent's explanation cannot be accepted as entirely true.

47. In the aforesaid context, it is necessary to now examine whether the prosecution's case that the respondent is guilty of a commission of an offence under Section 409 of IPC, is established. In the aforesaid context, it would be instructive to refer to the decision of the Supreme Court in Rabindra Kumar Dey v. State of Orissa: (1976) 4 SCC 233. In that case, the Supreme Court had noted that the Courts below had convicted the accused on the basis of the decision in Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay: (1960) 3 SCR 319 and observed as under:-

"The courts below appear to have convicted the appellant on the basis of the decision referred to above and have held that since the explanation given by the appellant was false, an inference of misappropriation could reasonably be drawn against him. This

proposition cannot be doubted. But the question is whether the explanation given by the appellant in this case can be said to be absolutely false? Another question that arises is what are the standards to be employed in order to judge the truth or falsity of the version given by the defence? Should the accused prove his case with the same amount of rigour and certainty, as the prosecution is required, to prove a criminal charge, or it is sufficient if the accused puts forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case? In our opinion three cardinal principles of criminal jurisprudence are well-settled, namely:

"(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;

(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts."

It is true that under Section 105 of the Evidence Act the onus of proving exceptions mentioned in the Penal Code, 1860 lies on the accused, but this section does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him

throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Penal Code, 1860 on which he seeks to rely. It is sufficient for the defence 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."

48. The Supreme Court also referred to its earlier decision in Harbans Singh v. State of Punjab: (1965) 3 SCR 235 and State of U.P. v. Ram Swarup and Anr.: 1975 SCR (1) 409. In Harbans Singh v. State of Punjab (supra), the Supreme Court held as under:-

"But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an exception. Where an accused person is called upon to prove that his case falls under an exception, law treats the onus as discharged if the accused person succeeds 'in proving a preponderance of probability'. As soon as the preponderance of probability is proved,

the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt."

49. A similar view was expressed by the Supreme Court in State of U.P. v. Ram Swarup and Anr. (supra). In that case, the Court held as under:-

"That is to say, an accused may fail to establish affirmatively the existence of circumstances which would bring the case within a general exception and yet the facts and circumstances proved by him while discharging the burden under Section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecution, in which event he would be entitled to an acquittal. The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea."

50. It is, thus, clear that this Court is not required to examine whether the respondent has established his defense beyond any reasonable doubt but to evaluate whether the respondent has, by setting up a probable defense, cast a doubt as to the case set up by the prosecution. This is because the onus to establish that the accused is guilty of commission of the offence beyond reasonable doubt does not shift from the prosecution.

51. However, in the facts of this case, this Court is unable to accept that the defense sought to be set up by the respondent meets the

standard of preponderance of probability. First of all, the respondent did not step into the witness box. He did not lead any evidence to establish that he was dispossessed of the weapon by any person. Instead, he confronted the witness for prosecution by three documents

- one complaint (marked DA) and two letters (marked as AX and DB). The narration of events in all the three documents is materially different and thus, the respondent did not even set up a consistent version, which could be considered as his defense.

52. This Court finds it difficult to accept that the respondent had lost his consciousness and was lying near a bus stand for several hours

- as is the respondent's stand is in his letters marked AX and DB - and no one would have reported the matter to the police or called a PCR. The alleged complaint (Ex. Mark as DA) also indicates a version that is difficult to believe. It is difficult to accept that a police official who is grievously hurt and is rescued by police officials, would not be taken to a hospital by other police officials.

53. It is difficult to accept that the police officials would not have lodged an FIR, if it was reported by the respondent that he had been attacked by four / five persons and was grievously hurt. It is also difficult to accept that the respondent would have taken no further steps to ensure that an FIR is lodged in case the weapon had been stolen by four / five persons after beating him up.

54. There is no credible evidence or material that would establish that the respondent had gone to Police Station Uttam Nagar on the date of the incident.

55. Undisputably, there is ample evidence on record to show that the respondent had been grievously hurt. PW5 had also testified that he had seen the respondent in an injured condition. However, the fact that the respondent had suffered injuries on 6/7.07.2003 does not mean that there is any truth in the defence raised by him. There appears to be no credible evidence whatsoever that the respondent had suffered injuries at the hands of four / five persons who had then stolen his weapon. There may be various reasons for the respondent to have suffered the injuries and the fact that the respondent had taken no effective steps for ensuring that an FIR is registered, does indicate that the respondent has been less than truthful.

56. The respondent is a police official and is fully aware of the procedure to be followed in such cases. The fact that he had not done so, cannot be ignored. This Court finds that the learned ASJ had grossly erred in concluding that the respondent had set up a probable defence. The defence set up by the respondent has little credibility. As noticed above, he appears to be adopting different versions at different times.

57. In view of the above, the appeal is allowed and the impugned judgment dated 10.06.2018, is set aside.

58. Having stated the above, this Court is also of the view that the sentence awarded to the respondent is harsh, considering that the respondent has already compensated the Government with the full monetary value of the weapon. The respondent has also been subjected to disciplinary proceedings.

59. Considering the circumstances of the case, this Court is of the view that the sentence awarded to the respondent be reduced to rigorous imprisonment for a period of six months. It is so directed.

60. The pending application is also disposed of.

VIBHU BAKHRU, J MARCH 03, 2020 RK