1.The appellant, Saraswati Prasad was convicted by Mr. Khadim Ali, Additional Assistant Sessions Judge, Faizabad, on 17th March 1948, under 8. 409, Penal Code, and sentenced to rigorous imprisonment for five yeara and a fine of Ea. 8000 or in default further rigorous imprisonment for six months.
2. The prosecution case briefly was that the appellant was the manager of the U, P. Co-operative Development and Marketing Federation for purchasing paddy at Raunahi and Baragaon centres, that on 17th January 1947, Bs. 3000 were paid to him for paddy purchase, that instead of buying the paddy or returning the money he informed the authorities concerned that on 29th January 1947, at about 10 P. M. he had been robbed of the money. The prosecution alleged that the appellant had criminally nrisappropriat. ed the sum of Ks. 3000 and had committed criminal breach of trust in respect thereof. The appellant admitted his employment and receipt of Rs. 8000 for the purpose of purchasing paddy but stated that he in fact was robbed on the night of 29th January 1947, about two furlonga away from Suchhittaganj Bazar by four persons. The case was tried by a jury and the unanimoua verdict of the jury was that the appellant is guilty and he was accordingly convicted.
3. It has been urged in this appeal that the learned Judge did not properly explain the ingredients of as. 409 and 405, Penal Code, that the jury was not properly directed as to the onus of proof in the case and they were not told that the burden lies essentially on the prosecution to prove its case, that certain evidence in favour of the appellant was not prominently brought be. fore the jury, and that on account of these misdirections there has been a failure of justice and the oonviction and sentence ought to be set aside. I have heard the learned Counsel and am satisfied that the appeal must be allowed.
4. In his charge to the jury while laying down the law which is applicable, the learned Judge stated as follows:
I may also tell you that you are be und to aooept the law as may be expounded by me. Section 409, Penal Code provides punishment for criminal breach of trust committed by public servant or agent among others. as to what amounts to criminal breach of trust is defined in Section 405, Penal Code, which reads as follows:
Whoever, being in any manner entrusted with property or with any dominion over property dishonestly misappropriates, converts to his own use or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which snch trustistobedisohargod, or of any legal contract, express or implied which be haa made touching the discharge of such trust, or wilfully suffers any other parsons go to do, commits 'criminal breach of trust,One of the main ingredients of the offence is that the accused who [?] has acted dishonestly which has been denned in Section 24, Penal Code as follows:Whoever does anything with the intention of causing wrongful gain to one person or wrongful losa to another person is said to do that thing dishonestly.
5. It will certainly be seen that the learned Judge has not explicitly pointed out to the jury what ingredients must be proved to constitute an offence under Section 409, Penal Code. He has also not pointed out to the jury as to what is meant by 'wrongful gain' or by 'wrongful loss.' The learned Judge further proceeds ;
It has not been disputed by the learned Counsel for the accused that in view of the admission of the accused that during the period in question he was in the service of the Federation as a manager for paddy purchase and in that capacity received Bs. 3000 he would be guilty under Section 409, Penal Code, unless he succeeds in proving that he had been robbed of the amount. That proposition could not be disputed in view of the rulings of the different High Courts. It was held by the Allahabad High Court in King-Emperor v. Qadir Bakhsh S A. L. J.',88' : 33 All, 249, that if it la proved by the Crown that the money paid to the accused, while ha was in its service, was not returned by him in accordance with his duty the burden liea on the accused to prove his defence. The view of the Rangoon High Court is contained in the following observation in Sona Meah v. Emperor A. I. B. (12) 1925 Bang, 47 at p. 48, Col, 1 : 26 Cr. L. J. 267:
It is settled law that where property is entrusted to a servant, it is the duty of the servant to give a true account of what he does with the property so entrusted to him. If such servant fails to return the property or to account, or gives an account which is shown to be false and incredible it is ordinarily a reasonable inference that he haa criminally misappropriated the property so entrusted to him and dishonestly converted it to his own use.The view of Avadh Chief Court appears from head-note A of Brij Kishore v. Chandrika Prasad 1936 Av. W. N. 212 : A. I, B. (23) 1936 Oudh 329 : 37 Cr, L. J. 322. It reads as follows:
Where a servant fails to render accounts and to deliver up the money realized by him in spite of repeated demands he uses the property entrusted to him in violation of the legal contract made by him with his master and is thus guilty of an offence under Section 408, Penal Code.Thus the only fact that remains for determination is whether the accused has succeeded in proving that he had been robbed of the amount in question as has been pleaded by him.
6. It will be clear from what haa been re. produced above that the learned Judge was of the opinion as apparently was the counsel fot the appellant in his Court, that if the appellant succeeds in proving that he was robbed he is not guilty but otherwise he is guilty. The way in which the proposition has been put certainly conveys an erroneous idea. The learned Judge forgot to draw the attention of the jury to one fundamental principle of criminal jurisprudence. It is that in criminal cases an accused person shall always be deemed to be innocent until he is proved guilty and the burden always lies on the prosecution to prove the guilt of the accused. Nowhere in the charge to the jury has the learned Judge brought this matter to the notice of the jury. Again, it is true that the burden of establishing any special issue raised by the accused rests upon him but there is always the burden of the general issue as to the guilt of the accused person which always rests upon the prosecution. this view has been taken by a Bench of two Judges of the Calcutta High Court in Major Robert Stuart Wauchope v. Emperor A. I. B. (20) 1933 cal. 800 : 35 or. L. J. 156. In this judgment case-law was discussed and reference was made to Phipson'sLaw of Evidence. At p. 34 in Phipson's Law of Evidence occurs the following statement:
When the burden of the issue is on the prosecution the Oftse must be proved beyond a reasonable doubt .... When, hownver, the burden of an issue is upon the accused, he is not in general called on to prove it beyond a reasonable doubt, or in default to incur a verdict of guilty; it is sufficient if he succeeds In proving a priroa facie case, for then the burden of such issue is shifted to the prosecution which has still to discharge its original and major onus that never shifts,that is, that of establishing on the whole case, guilt-beyond a reasonable doubt
and again on p. 33 of the same be ok occurs the further following statement:
It is not, however, for the accused to prove honest dealing with the property, but for the prosecution to prove the reverse, R. v. Lewis 1920-14. Cr. App, 33 ; and if an explanation be given which the Jury think may be true, though they are not convinced that it ia, they must acquit foe the main burden of proof (i. e, beyond reasonable doubt) rests throughout upon the prosecution, and in this case will not have been discharged.'
It is quite clear, therefore, that the jury ought to have been told that the burden of proving the case lay entirely on the prosecution that if the explanation given by the appellant was in their opinion reasonably true, even though they were not convinced that it was, they ought to give the benefit of the doubt to the appellant. There was thus a serious misdirection to the jury which in my opinion has caused a failure of justice. It is clear that the appellant produced at least two witnesses in support of his allegation that he had been robbed at about;i0 P. M. on 29th January 1947. He intimated the higher authorities of what had happened. The jury certainly were at liberty not to believe the story, but they had still to consider whether the explanation could reasonably be true, and I have not the slightest hesitation in saying that had the position been put this way to the jury they would have found it impossible to say that the story of robbery was false and they had no difficulty in saying that the story could reasonably be true and would have thus given the benefit of the doubt to the appellant.
7. In view of this, it is quite unnecessary to consider the other points raised by the appellant that the evidence which was in his favour was not prominently brought before the notice of the jury.
8. The next question is as to whether any retrial should be directed in this case. It ig olear that all that the prosecution was able to prove was that the appellant had received Es. 800 for a certain specific purpose, but the appellant had not applied the money for that purpose. There was no clear evidence that act. ually the money had been misappropriated by the appellant, or had been used by him for purposes other than those for which it was meant. An attempt was made by the prosecution to prove by the evidence of one witness that some months after the alleged criminal breach of trust the appellant had purchased the crop of a grove and a horse and an ekka. If this circumstance was sought to be used against the appellant he ought to have been questioned about it himself by the trial Court, and this was not done. The-witness produced in respect of those transaction was one against whom the appellant had taken criminal proceedings and they were pending at the time of the prosecution. In auoh circum. stances the evidence could hardly have been considered reliable enough to prove any misappropriation on the part of the appellant. There is in fact no evidence on behalf of the prosecution to prove criminal misappropriation and in such circumstances it would be futile to send the case back for retrial.
9. Accordingly I allow the appeal, Bet aside the conviction and sentence and direct that the fine, if paid, shall be refunded and the appellant -shall be released forthwith unless required in any other case.