Judgment · High Court · 2012

During trial, the witnesses, already examined before consideration of ch arge, were recall for further cross-examination. On the conclusion of recording of evidence from the prosecution side, the statements of the accused persons wer e recorded. Once again, the accused persons pleaded that they are innocent. On t he conclusion of trial and on hearing the argument, advanced from the side of pa rties, learned trial Court acquitted all the accused persons save and except acc used Sayed Khabiruddin Ahmed. 9. Accused Sayed Khabiruddin Ahmed was, however, convicted under Section 40 6 IPC and was sentenced to punishment as aforesaid. It is that judgment which wa s assailed by the accused Khabiruddin having preferred appeal bearing No. C.A. 1 4 of 2003 in the court of Sessions Judge, Nalbari. On hearing the parties, learned Sessions Judge, Nalbari acquitted the ac 9A. cused-appellant Sayed Khabiruddin of offence under Section 406 IPC. Being aggrie ved, Musstt. Samsun Nehar Begum, wife of accused-appellant preferred this appeal alleging several infirmities in the judgment rendered by the learned Sessions j udge in C.A No.14/2003. 10. Opening up the arguments on behalf of the appellant herein, learned coun sel has submitted that the judgment rendered by the learned First Appellate Cour t is unsustainable in law since it ignored the evidence on record, in coming to the conclusion that materials on record do not disclose an offence U/s 406 IPC h aving been committed by the accused/ appellant on holding that entrustment prope rty to the accused/appellant on the occasion of his marriage with the appellant herein or any time thereafter was not established. 11. According to the learned counsel for appellant, evidence rendered by pro secution witnesses clearly shows that on the occasion of marriage of the complai nant with her husband Sayed Khabiruddin, the complaint was gifted with some arti cles, such as, gold ornaments, furniture and other household articles. There is also evidence to show that those articles were entrusted to accused persons, mor e particularly to her husband Sayed Khabiruddin Ahmed. 12. What is important to note is that there is also evidence to show that th e properties which were gifted to the complainant on the occasion of her marriag e and which were entrusted to the accused person were not allowed to be taken ba ck by the complainant which was nothing but amounted to violation of trust on th e basis of which her husband came to possess such articles. 13. According to learned counsel for the appellant all those things had clea rly emerged from the evidence rendered by complainant who was examined as PW.1 i n C.R Case No.446C/2001 under Section 406 IPC. Equally importantly, the evidence , so rendered by PW.1 stands fully corroborated in the face of testimonies, rend ered by the other three prosecution witnesses. 14. In view of the above, it has been submitted that the judgment, rendered by the First Appellate Court which is under challenge in this appeal is liable t o be set aside for not being based on facts and also for not being inconformity with the law holding the field in the case under consideration. 15. Controverting such argument from the side of appellant, leaned counsel for the respondent No.2 has very vehemently contended that judgment of the first appellate court is based on facts on record and same was rendered keeping in vi ew the law invoked therein and such a judgment, therefore, invites not interfere nce what so ever from court of appeal. 16. He further submits that when two views are possible on the same set of f acts, the view, favorable to the accused needs to be accepted. According to him, since the Courts, below, adopted two different views on the same set of facts, one which supports the claim of accused person needs to be accepted. 17. In that connection he referred me to the decision of the Hon’ble Supreme Court, rendered in the case of Haricharan and others Versus State of Madhya Pra desh and others reported in 4 SCC 159.In that case, it has been held as follows: (cid:28)If two reasonable conclusions are possible on the basis of the evidence on reco rd, the appellate Court should not disturb the finding of acquittal recovered by the trial Court. (cid:29)

#18. I have heard Ms. K Begum, learned counsel for the State respondent, who supports the arguments advanced by the leaned counsel for the appellant. I have given my anxious consideration to the evidence on record having regard to argume nts, advanced by the learned counsel of the parties. 19. But before I proceed further, I will find it necessary to have a brief r eview of evidence on record and evidence of PW.1 , the complainant , is ,first, taken up for consideration. In her evidence, PW1 Syeda Samsun Nehar Begum has st ated that on the occasion of her marriage, some gold articles, furniture and oth er house hold articles were gifted to her. All those articles were taken to the residence of Sayed Khabiruddin where she lived with him as husband and wife for some- time. 20. It is also in her evidence that she could not live happily for a very lo ng period in her husband’s house since her husband and his other family member s started torturing her demanding dowry. She went on to say that a list of artic les which were gifted to her on the occasion of marriage were also prepared. In her cross-examination, she, however, admitted that she could not say whether it was signed by her husband or not. 21. She also could not say if some other persons signed it as being the wi tnesses to the handing over of those articles to her husband. In her cross-exami nation, she further stated that she never complained anybody that her husband ke pt her gold ornaments in an almirah under lock and key. Nor did she inform any o ne that she was never allowed by the accused husband to use those gold ornaments gifted to her on the occasion of her marriage.

#22. PW2, Syed Gulami Ahmed is the younger brother of the complainant. Accord ing to him, he, being the brother of the complainant, was present in the marriag e between the parties. On the occasion of her marriage with Sayed Khabiruddin Ah med, some furniture, wearing apparels and some gold ornaments were gifted to his sister, which were taken to the residence of her husband.

#23. Soon after the marriage, her husband and other relatives started demandi ng his sister various articles such as T.V. motorcycle, and other articles to be brought from her parents. According to this witness, a list of articles, which were gifted to her sister, was prepared in duplicate at their house on that day itself. One copy of the same was retained by him while other copy was handed ove r to his brother-in- law. It is his specific claim that nobody put their signatu re on the aforesaid list. 24. PW3, Md. Sahanur Ali is a cultivator and the neighbour of the complainan t. He is also found saying that he attended the marriage between complainant and accused Khabiruddin. According to this witness, on the occasion of her marriage , some articles are gifted to the complainant. In his cross-examination, he, ho wever, admitted that he could not say what articles were gifted to the complaina nt on the occasion of her marriage. He also could not say if a list was prepared in respect of articles which were so gifted to the complainant.

#26. PW. 4, Syed Jafaruddin Ahmed, who is a teacher by profession, has stated that the complainant is his niece. According to PW4, on the occasion of the mar riage, she was given some articles as gift. However, the marriage was short live d one since soon after the marriage, her husband and other relatives started tor turing her. In his cross-examination, he has stated that a list of articles whic h were gifted to the complainant was prepared and it was written by one Golami A hmed, but he was not sure if it was signed by anyone present in that marriage c eremony. Before we put the aforesaid evidence on scrutiny, I find it necessary to 27. have a look at Section 405 IPC, which deals with criminal breach of trust. On p erusal of above provision of law, I have found that before being found a person guilty of offence U/s 406 IPC, prosecution needs to prove the followings: (1) There should be an entrustment by one person to another of the property or w ith any dominion over property; (2) Such entrustment must be in trust; (3) There must have been a misappropriation or conversion to his own use by the person who received the property in trust; and (4) Such conversion or retention of the property must be against or in violation of any direction of law prescribing the mode in which such trust is to be disch arged, or of any legal contract made touching the discharge of trust. Coming to her evidence on record, we have found that, as pointed out by 28. the learned counsel for the respondent No.2, that fundamental claim of the prose cution was that on the occasion of her marriage with Sayed Khabiruddin Ahmed, so me articles were gifted to the complainant and same were entrusted to the accuse d person. More importantly, it was done by handing over to the accused person, a list of articles which were gifted to her on the occasion of her marriage wit h the accused person.

#29. Thus, in order to prove the entrustment of articles in favour of accused Sayed Khabiruddin Ahmed, the prosecution was duty bound to produce such documen t before the court and also to prove it in accordance with law. Unfortunately, i n our instant case, same does not happen since the prosecution did not produce t he same although if one believes the testimony of PW.2, a copy of the same was a vailable with him (PW.2) at all the time relevant. 30. What is worse, the claim of prosecution that such a document exists is f ound to be extremely doubtful since the evidence rendered by PWs on this count i s found to be at great variance. This is because of the fact that though PW.2 ha s claimed that he gave a copy of the aforesaid list to his brother-in-law yet no ne of the witness examined from the side of prosecution had supported such a cla im of the PW.2 31. Further more, there is no reliable evidence on record to show if any of the witness (es) present in the marriage ceremony put his/their signature on suc h a vital document, reportedly prepared to show the presentation of various arti cles to the bride on the occasion of her marriage as well as the entrustment of those articles to the bride groom at the marriage majliz itself. 32. In the face of above revelations, it would be extremely difficult to com e to a conclusion that on the occasion of her marriage with the accused Sayed Kh abiruddin Ahmed, the complainant was presented some articles which were, in turn ,handed over to her husband to retain it as being the trustee thereof. Thus, th e very first ingredient of the offence under Section 406 IPC is found clearly mi ssing in this case. 33. Even we assume for the sake of argument for a moment that there was entr ustment of some articles, belonging to complainant to her husband on the night w hen marriage in question was solemnized yet there is absolutely no evidence on r ecord to show that the accused did not hand over those articles to the complaina nt on 21. 05. 01 or on 01. 06 .01 or on any other date(s) following demands made by the complainant to return those articles to her. Equally importantly, there is no evidence either to show that the accused had ever misappropriated those ar ticles or used those articles in violation of trust created. 34. Quite contrary to it , on the perusal of the record, I have found that t here is evidence on record to show that the complainant never ever complained to anyone regarding her being not allowed by her husband to use the ornaments or o ther articles which were reportedly given to her on the occasion of marriage. Sh e also never complained to anybody that she could not use her ornament for the s ame being kept in the almirah under lock and key by her husband. 35. On further scrutiny of the evidence on record, I have also found that th ere is no dependable evidence to show what were those articles which were gifted to the complainant on the occasion of her marriage. In absence of such evidence , it would not be possible for the court to ascertain with clarity the claim of the complainant that her husband had misappropriated/ or utilized those property in a way not authorized by trust allegedly created between the parties.

#36. In view of the above, what I have discussed herein before and what have emerged there- from, I am of the opinion that there was no entrustment of proper ty in favour of husband of the complainant on the night when the marriage betwee n the parties were solemnized or anytime thereafter and as such, question of bre ach of trust does not arise at all.

#37. Above being the position, the decision of the learned first appellate Co urt holding that prosecution could not make out the charge under Section 406 IPC against the accused person, cannot be said to be illegal or inconsistent with l aw. 38. the trial court. 39. Consequently, this appeal stands dismissed of. In the result, I have found no reason to interfere with the judgment of