the claim has been repudiated due to non-disclosure of material facts. As per Section 45 of the Insurance Act, a period of 2 years is effectively provided to the insurance company to verify the facts as mentioned in the proposal form and in case a claim is raised within the said period of 2 years as contemplated under section 45 the insurance company is entitled to reject the claim under a policy on the ground that any information as contained in the proposal form is factually incorrect, irrespective of whether the same is connected with the cause of death or otherwise.” – the assured had misrepresented facts and had deliberately concealed the material fact that he was suffering from IDDM with RLF with lymphadenitis. If this was the case, we fail to understand what prevented the revision petitioner/OP from submitting this report before the District Forum and from examining the investigator as well as the expert, whose assessment it has claimed to have relied upon. 11. A similar matter had come up for consideration in Civil Appeal No.7437 of 2011 decided by Hon’ble Supreme Court of India on 26.8.2011 (P. Venkat Naidu Branch Manager, LIC Kurnool and Anr). A Life Insurance Police of Rs.10 lakhs was taken by the insured with effect from 28.4.2002. In the proposal form for insurance, the insured had not indicated whether during the last five years he had consulted any medical practitioner for any ailment. The insured died on 19.12.2003 due to cardio respiratory failure. The claim under the policy was contested by the insurance company on the ground that the insured had suppressed facts relating to his illness at the time of taking the policy. 12. The Supreme Court has held that “Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation.” The respondents were found to have failed to produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the claim under the policy was allowed. 13. For the reasons detailed above, we find that revision petition has failed to make out any case against the impugned order. It is consequently dismissed for want of merit. No orders as to costs.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 982 OF 2011

(Against the order dated 4.2.2011 in Appeal No.76 of 2011

of the State Commission, Rajasthan)

1.  Bajaj Allianz Life Insurance Co. Ltd.

     Through Nivedita Chakravorty

     State Operations Manager and

     Authorized Signatory

     Having its office at 2^nd Floor,

     Narbda Bhawan, Station Road,

     Above Bank of Baroda

     Churu, Rajasthan                                           

                                                              

2.    Bajaj Allianz Life Insurance Company Limited

       Through Nivedita Chakravorty

       State Operations Manager and

       Authorized Signatory

       Having its office at 2^nd Floor,

       G.E. Plaza, Airport Road,

       Yerwada, Pune- 411006                                                                                                                             ……….Petitioners

                                                              

Versus

Mrs. Nasi Ban Begum

W/o Late Mr. Akbar Ali Subhan

Caste Teli,

Sainik Basti, Churu,

Rajasthan                                                                                                                                                               .........Respondent

BEFORE

HON’BLE MR. JUSTICE J.M. MALIK,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioners         :   Mr. Kalyan Vadlamani, Advocate

For the Respondents     :  Mr. Sartaj Ali, Advocate 

PRONOUNCED ON:   01-08-2012    

ORDER

PER MR.VINAY KUMAR, MEMBER

This revision petition comes in the face of concurrent orders of the District Consumer Protection Forum, Churu and Rajasthan State Consumer Disputes Redressal Commission.  The matter pertains to the claim under a life insurance policy, which was in operation since 28.12.2008.  The insured allegedly died due to electrocution on 8.9.2009.  The Complainant, wife of the insured, made a claim under the insurance policy, which was repudiated by the opposite party/ revision petitioner in the present proceedings, Bajaj Allianz Life Insurance Company Ltd.

2.      The letter of 15.1.2010 address by the revision petitioner/OP to the respondent/Complainant gave the following reasons for repudiation of the claim—

“We regret to inform you that the death claim under captioned policy has been declined for the following reason:

The company had covered the risk for the above said policy on the basis of the facts mentioned in the proposal form. However, on receiving the death claim intimation for the above said policy, the various investigations and the various medical certificates confirm that the deceased life assured had history of hospitalization and treatment during 28/09/2006 to 4/10/2006 for insulin dependent diabetes mellitus with refractory lymphadenitis failure with lymphadenitis with right ankle cellulites.  The facts known to deceased life assured were not disclosed in the proposal form dated 06/12/2008.

Had these facts been disclosed the company would not have covered the risk for the policy. 

Hence, the claim has been repudiated due to non-disclosure of material facts.”

3.      The District Forum allowed the complaint, holding that the complainant was entitled to receive the insured amount, with 9% interest from the date of the complaint. In the appeal filed by the OP/revision petitioner, challenging the decision of the District Forum, the State Commission held that the appellant had not clarified what was the ailment for which the deceased was treated before commencement of the policy. Also, that the death was caused by electrocution and not by any disease.  The treatment, if any, would have been taken more than two years prior to the date of commencement of the insurance policy.  Further,  the decision of Hon’bleSupreme Court of India in P.C.Chacko & Anr. Vs. Chairman Life Insurance Corporation of India & Ors. (2008) 1 SCC 321 was held to be not applicable to the fact of this case.  In the matter before the Supreme Court, the insured had died subsequent to a major surgery, while in the present case the death was caused by electrocution of the insured.  Therefore, the question whether or not any material fact was concealed was held to be not relevant to the facts of this case.  The State Commission therefore, held that repudiation of the claim on the ground of some past ailment was not justified as the insured had died due to electric shock.

4.      The order of the State Commission is now challenged before this Commission, by the OP/revision petitioner.  We have carefully considered the records of the case and heard learned counsels for the two parties.

5.      In the written statement of the OPs before the District Forum an issue has been raised about the cause of death of the assured, stating that it was a case of ‘unnatural death’ as per police report of 8.9.2009 and therefore the claim of the complainant, that it was due to electrocution, would need to be established by independent evidence.  This appears to be a meaningless attempt to raise a doubt about the cause of death.  The report of the post-mortem is on record.  The medical officer, who conducted the post-mortem, has recorded in his own hand that “After conducting PM examination I am of the opinion that cause of death is cardio respiratory failure due to electrocution”. Therefore, this contention of the petitioner has to be rejected without any further consideration.            

              In para O of the revision petition, it is stated that:-

“For, the State Commission erred in the interpretation of Section 45 of Insurance Act.  Hence, if the life insured has concealed material facts, which was to his knowledge, at the time of filing in the Proposal Form, yet he suppressed the same, the provisions of Section 45 of the Insurance Act would get attracted and it is within the domain of the Petitioner Company to rescind the insurance contract or repudiate a claim under the insurance contract.  The said policies have been repudiated within a period of two years from the date of issuance of the said policies.  As per Section 45 of the Insurance Act, a period of 2 years is effectively provided to the insurance company to verify the facts as mentioned in the proposal form and in case a claim is raised within the said period of 2 years as contemplated under section 45 the insurance company is entitled to reject the claim under a policy on the ground that any information as contained in the proposal form is factually incorrect, irrespective of whether the same is connected with the cause of death or otherwise.”

6.      In view of this contention of the revision petitioner, we find it necessary to reproduce the provision in Section 45 of the Insurance Act, 1938.  It reads as follows:-

“45.  Policy not to be called in question on ground of mis-statement after two years.-  No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement [was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made] by the policy-holder and that the policy-holder knew at the time of making it that the statement was false [or that it suppressed facts which it was material to disclose]:

[Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.]

7.     There is no misinterpretation of the above provision by the State Commission. In the case before us, as already noted, the policy commenced on 28.12.2008 and the repudiation of the claim was done on 15.1.2010 i.e. within two years.  The contents of the proposal form of 6.12.2008,  on which the policy was based, are being called in question by the Insurance Company. For this, as observed by the State Commission, the OP/revision petitioner is relying on alleged medical treatment of the insured two years before the commencement of the policy.  The State Commission has come to a conclusion that the appellant has not clarified what was the illness for which the deceased was admitted to NH Nursing Home, Churu during the period 28.9.2006 to 4.10.2006.

8.      Having called the facts in to question, it was incumbent upon the revision petitioner to specifically point out what evidence was led before the fora below in support of its claim that the deceased had been suffering from “insulin dependant diabetes mellitus with refractory lymphadenitis failure with lymphadenitis with right ankle cellulites”.  Instead of discharging this burden of proof, the revision petition merely states “The Life Insured despite being questioned with regard to the said fact in the Proposal Form did not disclose that he was suffering from IDDM with RLF with lymphadenitis with right ankle cellulites or that he was undergoing treatment for the same.”  

9.      The letter of repudiation referred to various medical certificates and various investigations as the basis for decision. But, from the list of documents produced on behalf of the revision petitioner before the District Forum, we find that five documents were produced. Among them, the only document of any relevance to the claim of pre-existing disease was a photocopy of the admission slip of the deceased at HN Nursing Home Churu.  There is no indication of any record of treatment having been filed before the forabelow.

10.    Further, it is also claimed in the revision petition that the company had conducted an investigation in which documents and information obtained were collated and analysed and professional medical opinion taken. It allegedly brought the company to a conclusion that the assured had misrepresented facts and had deliberately concealed the material fact that he was suffering from IDDM with RLF with lymphadenitis.  If this was the case, we fail to understand what prevented the revision petitioner/OP from submitting this report before the District Forum and from examining the investigator as well as the expert, whose assessment it has claimed to have relied upon.

11.    A similar matter had come up for consideration in Civil Appeal No.7437 of 2011 decided by Hon’ble Supreme Court of India on 26.8.2011 (P. Venkat Naidu Branch Manager, LIC Kurnool and Anr).  A Life Insurance Police of Rs.10 lakhs was taken by the insured with effect from 28.4.2002.  In the proposal form for insurance, the insured had not indicated whether during the last five years he had consulted any medical practitioner for any ailment.  The insured died on 19.12.2003 due to cardio respiratory failure.  The claim under the policy  was contested by the insurance company on the ground that the insured had suppressed facts relating to his illness at the time of taking the policy. 

12.    The Supreme Court has held that “Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation.”  The respondents were found to have failed to produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the claim under the policy was allowed.

13.    For the reasons detailed above, we find that revision petition has failed to make out any case against the impugned order. It is consequently dismissed for want of merit. No orders as to costs.

.………………Sd/-…………

(J. M. MALIK, J.)

PRESIDING MEMBER

………………Sd/-………….

(VINAY KUMAR)

                                                                                            MEMBER

s./-

Applying the said principles to the facts of the case on hand, we find that the solitary version of the chief examination of PW-4, the prosecutrix cannot be taken as gospel truth for its face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellants.The prosecution has miserably failed to establish the guilt of gang rape falling under Section 376 (2) (g), IPC against the appellants. The conviction and sentence imposed on the appellants by the trial Court and confirmed by the impugned order of the High Court cannot, therefore, be sustained. The appeals are allowed. The judgment and order of conviction and sentence passed by the trial Court and confirmed by the High Court are hereby set aside. The appellants are acquitted of all the charges and they be set at liberty forthwith, if not required in any other case.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2486  OF 2009

    Rai Sandeep @ Deepu                 …Appellant


                                   VERSUS


    State of NCT of Delhi                      …Respondent


                            With
                      CRIMINAL APPEAL NO. 2487  OF 2009

    Hari Singh                               …Appellant


                                   VERSUS


    State (NCT) of Delhi                       …Respondent


                               J U D G M E N T


Fakkir Mohamed Ibrahim Kalifulla, J.
1.    These two appeals at the instance of the  accused  arise  out  of  the
common judgment dated 27.01.2009.  Hence, we will dispose them  of  by  this
common judgment.  Both the appellants were  convicted  for  the  offence  of
gang rape by  the  trial  Court  and  were  sentenced  to  undergo  rigorous
imprisonment for 10 years each with a fine of Rs. 3,000/- each,  in  default
to undergo further rigorous imprisonment for one  year  each  under  Section
376 (2)(g), IPC.

2.    The case of the prosecution was that on 15.08.2001  in  the  night  at
about 1.30 a.m. the prosecutrix (PW-4)  aged  about  34  years  was  in  her
sister’s house, namely, Seema, that she heard the noise of knocking  at  the
door, that the minor daughter of her sister, namely,  Noju  (PW-10),  opened
the door and both the accused persons entered and the accused Rai Sandeep  @
Deepu told the prosecutrix that he wanted to have  sexual  intercourse  with
her.  According to the prosecutrix (PW-4), she rebuked their demand  stating
that she was not of that type and that the appellants threatened  her,  that
in the meantime  one  Jitender  (PW-11),  minor  son  of  her  sister  Seema
appeared and both the minor children asked  the  appellants  to  go  out  of
their house but the appellants pushed the minor children  into  a  room  and
bolted the door of the room from outside.  The  further  allegation  of  the
prosecutrix (PW-4) was that the appellant-Rai Sandeep @  Deepu  in  Criminal
Appeal No.2486 of 2009 made her lie down in the Verandah  outside  the  room
and had forcible sexual  intercourse  with  her  while  his  companion,  the
appellant in Criminal Appeal No.2487 of 2009 was guarding the main  door  of
the house. It was further alleged  that  after  the  appellant  in  Criminal
Appeal No.2486 of 2009 had forcible intercourse with  the  prosecutrix  (PW-
4), he took  the  turn  of  guarding  the  door  while  his  companion,  the
appellant in Criminal Appeal  No.2487  of  2009  also  had  forcible  sexual
intercourse with her, that both the appellants  wiped  their  private  parts
with a red colour socks which was lying in the Verandah  and  while  leaving
the place of occurrence, they took away a  gold  chain  and  a  wrist  watch
which was lying near the TV inside the room.  The appellants stated to  have
left the place by bolting the main door  from  outside.   According  to  the
prosecutrix (PW-4), since it was dark in the night she did  not  venture  to
go out at that time and in the morning she asked her  nephew  Jitender  (PW-
11) to get out of the house from roof  top  and  open  the  door  which  was
bolted from outside.   Thereafter,  she  is  stated  to  have  reported  the
incident to the police.

3.     Based  on  the  investigation,  the  appellants  were  arrested   and
thereafter the gold chain and the wrist watch was recovered at the  instance
of the appellant in Criminal Appeal No.2486 of 2009 and subsequently on  his
disclosure the appellant  in  Criminal  Appeal  No.2487  of  2009  was  also
arrested. The prosecutrix (PW-4) and the  appellants  were  stated  to  have
been medically examined, that the appellant in Criminal  Appeal  No.2487  of
2009 refused to participate in the  test  identification  parade,  that  FSL
report of Exhibits were also obtained and the charge  sheet  was  filed  for
the offence of gang rape.  Seventeen witnesses were examined on the side  of
the prosecution which included the prosecutrix (PW-4) as well as  her  niece
Noju and nephew Jitender, minor children of prosecutrix’s sister  Seema  who
were examined as  PWs-10  and  11.   PWs  1  and  5  were  the  doctors  who
testified the medical report of the prosecutrix (PW-4).   PWs-2,  3  and  13
were  the  doctors  who  deposed  about  the  medical  report  of  both  the
appellants.  SI Rajiv Shah (PW-14)  was  the  investigating  officer.   None
were examined on the side of  the  appellants.   The  appellants  have  been
convicted as stated above and the said conviction having been  confirmed  by
the order impugned in this appeal, the appellants are before us.

4.    Learned  counsel  appearing  for  the  appellant  in  Criminal  Appeal
No.2486 of 2009 submitted that while the alleged offence took place  on  the
night of 15.08.2001 at 1.30 a.m., the FIR was lodged at 14.20 hours  on  the
next day, that in the FIR the name  of  the  appellant  in  Criminal  Appeal
No.2486  of  2009  alone  was  mentioned  and  that  there  were  very  many
contradictions in the version of the prosecutrix (PW-4)  before  the  Court.
Learned counsel by referring to the FSL report PW-14/N  contended  that  the
report does not implicate the appellant to the offence alleged against  him.
 According to learned counsel, the trial Court as well  as  the  High  Court
ignored the  fact  that  the  accused  were  neither  identified  nor  their
presence was established at the place of occurrence.  It was also  contended
that there were material contradictions in the evidence  of  PWs10  and  11,
and that of the  prosecutirix  (PW4)  and,  therefore,  the  conviction  and
sentence imposed is liable to be set aside.

5.    Learned  counsel  appearing  for  the  appellant  in  Criminal  Appeal
No.2487 of 2009 in his submissions contended that in the case  on  hand  the
evidence of the prosecutrix PW-4  definitely  need  corroboration,  inasmuch
as, there were contradictions in the entirety of  her  evidence  which  were
fatal to the case of the prosecution.  Learned counsel  contended  that  the
appellant was not named in the FIR and was roped in due to the statement  of
the co-accused,  namely,  the  alleged  confession  Annexure  P-3(colly)  in
Criminal Appeal No.2487 of 2009 stated  to  have  been  made  on  30.08.2001
based on which the present appellant was implicated.  Learned  counsel  also
contended that the medical evidence also did not support the  story  of  the
prosecution.  He also made  extensive  reference  to  the  evidence  of  the
prosecutrix (PW-4) to contend that the same was not in consonance with  what
was stated in the FIR and that, therefore, serious doubts  were  created  as
to the case of the prosecution and the trial Court failed to appreciate  the
defects of the case in proper perspective.  By making reference to  para  48
of the judgment of the trial Court, learned counsel  pointed  out  that  the
statement found therein by referring to the deposition of PW-11 was  totally
misleading inasmuch as no such statement was ever made  by  PW-11.   Learned
counsel further argued that the blood group AB stated to have been  detected
from the semen sample did not match with that of the accused  and  no  blood
of the accused was ever detected.  Learned counsel also pointed out that  no
injury was noted in the breast and thighs of  the  prosecutrix  (PW-4)  and,
therefore, the allegation  of  forcible  intercourse  was  not  proved.   He
further argued by making a reference to Exhibit PW-4/B the recovery memo  of
the  socks  from  the  place  of  occurrence,  that  in  her  evidence   the
prosecutrix (PW-4) deposed that  after  preferring  the  complaint  she  was
taken to the hospital for medical examination  where  she  handed  over  the
socks to the  police  when  her  petticoat  was  seized.   Learned  counsel,
therefore, contended that the offence of rape alleged against the  appellant
having not been established in the manner known to law, the  conviction  and
sentence imposed on the appellant is liable to be set aside.

6.    As against the above submissions, learned counsel for the  State  very
fairly contended that PWs-10 and 11 did  not  support  the  version  of  the
prosecutrix (PW-4) and solely based on the evidence of  the  prosecutrix  as
deposed in her chief examination, the offence was held  proved  against  the
appellants.  Learned counsel contended that the variation in  her  statement
in the course of cross examination may be due to the time gap of  two  years
after her examination in chief and, therefore, the same does not in any  way
affect the case of the prosecution.  Learned counsel  by  referring  to  the
reasoning of the trial Court, namely, that semen stains were  found  on  the
petticoat of the prosecutrix, that it was not the case of the  accused  that
she had sexual intercourse with her husband on the previous night, that  she
was in the house of her sister on the date of occurrence, that  the  medical
report Exhibit PW-5/A disclosed an abrasion on the right side  of  her  neck
below jaw and the said injury was not self  inflicted  and  the  prosecutrix
being a married woman, there was no possibility of  bleeding  in  vagina  as
the hymen was old torn and it was sufficient enough to prove  the  guilt  of
the accused.  According to him, the refusal of  the  appellant  in  Criminal
Appeal No.2487 of 2009 to participate in the test identification parade  was
sufficient to find the appellant  guilty of   the  offence  alleged  against
him.   Learned  counsel,  therefore,  contended  that  the  conviction   and
sentence imposed do not call for any interference.  He placed reliance  upon
the decision of this Court reported as State of Punjab  v.  Gurmit  Singh  &
Ors. - 1996 (2) SCC 384 in support of his submission.  Learned  counsel  for
the appellant in Criminal Appeal No.2487 of 2009 relied  upon  the  decision
in Lalliram & Anr. v. State of Madhya Pradesh - 2008 (10)  SCC  69,  Krishan
Kumar Malik v. State of Haryana - 2011(7) SCC 130 and Ashok Kumar  v.  State
of Haryana - 2003 (2) SCC 143.

7.     Having heard learned counsel for the appellants as well as the  State
counsel and having perused the relevant papers on  record  as  well  as  the
judgments of the courts below, we  feel  it  appropriate  to  refer  to  the
various  contradictions  pointed  out  by  the  learned  counsel   for   the
appellants and the  inconsistencies  in  the  case  of  the  prosecution  as
projected in the FIR as sought to be demonstrated before the  Court  in  the
form of oral  and  medical  evidence.   To  recapitulate  the  case  of  the
prosecution as projected in the FIR, on the night  of  15.08.2001  at  about
1.30 a.m., PW-4, the prosecutrix aged about 34 years, a married  woman,  who
was staying in her sister’s house, heard knocking of the door and that  when
she opened the door along with her niece Noju (PW-10) who was a minor  girl,
 the accused alleged to have forcibly entered the  house  and  demanded  sex
from the prosecutrix which she refused and the appellants forced  themselves
on her one after another after  pushing  her  nephew  Jitender  (PW-11)  and
niece Noju (PW-10) inside a room and bolting it from outside, and  that  one
of the accused kept vigil on the main door  while  the  other  had  forcible
sexual intercourse with her  in  turn.   It  was  also  alleged  that  after
committing the offence and after wiping  their  private  parts  with  a  red
colour  socks  lying  in  the  verandah  and  while  leaving  the  place  of
occurrence they stealthily removed a gold chain and a wrist watch  and  also
bolted the door from outside.  According to the prosecution,  the  appellant
in Criminal Appeal No. 2486 of 2009 was apprehended in  the  first  instance
and based on the admissible portion of his confession, the  gold  chain  and
wrist watch were recovered and based on  his  disclosure  the  appellant  in
Criminal Appeal No. 2487 of 2009 was also arrested.

8.    Keeping the above basic features of the offence  alleged  against  the
appellants in mind, when we make reference to the evidence of the so  called
‘sterling witness’ of the prosecution, namely,  the  prosecutrix,  according
to her version in the chief examination when the persons who knocked at  the
door, were enquired they claimed that they were from the crime branch  which
was not mentioned in  the  FIR.   She  further  deposed  that  they  made  a
statement that they had come there to commit theft and  that  they  snatched
the chain which she was wearing and also the watch  from  Jitender  (PW-11).
While in the complaint, the accused alleged to  have  stealthily  taken  the
gold chain and wrist watch which were lying near the T.V.   It  was  further
alleged that the appellant in Criminal Appeal No.2486 of 2009 was  having  a
knife in his hand which statement was not found  in  the  complaint.   After
referring to the alleged forcible intercourse by  both  the  appellants  she
stated that she cleaned herself with the red colour socks  which  was  taken
into possession under Exhibit PW-4/B in the hospital, whereas,  Exhibit  PW-
4/B states that the recovery was at the  place  of  occurrence.  The  police
stated to have apprehended the appellants at the instance of  Jitender  (PW-
11) who knew the appellant in Criminal Appeal No.2486 of 2009 even prior  to
the incident, that Jitender (PW-11) also  revealed  the  name  of  the  said
accused to her and that,  therefore,  she  was  able  to  name  him  in  her
complaint.  When the seized watch was shown to her in the Court,  the  brand
name of which was OMEX, she stated that the said watch was not worn  by  her
nephew Jitender (PW-11) as it was stated to be ‘TITAN’ and the chain  was  a
gold chain having no pendant.  She made it  clear  that  that  was  not  the
chain which she was wearing and that it did not belong to her and  that  the
watch found in the same parcel which was a women’s watch  was  not  the  one
which was worn by Jitender (PW-11).

9.    All the above versions were found in  the  chief  examination  of  the
prosecutrix (PW-4).  In her cross examination, there was  a  U-turn  in  the
version of the prosecutrix where she went to the extent of stating that  she
never knew the appellant in Criminal Appeal No.2486 of  2009  prior  to  the
incident and that she was not aware that accused Rai Sandeep was also  known
as Deepu,  that she never stated before the  police  that  Jitender  (PW-11)
knew Deepu prior to the incident or at the time of incident, that  since  it
was dark on the date of occurrence, she could  not  indentify  the  accused,
that her statement of orally identifying the accused was at the instance  of
the police.  When the learned APP wanted to cross examine her, the same  was
declined by the crime Court and there was  also  no  re-examination  of  the
prosecutrix (PW-4).

10.   Keeping aside the version of PW-4, the prosecutrix,  when  we  examine
the so-called  eye  witnesses  Noju  (PW-10)  and  Jitender  (PW-11),  their
version  is  much  more  revealing.   Noju  (PW-10)  is  the  niece  of  the
prosecutrix (PW-4), daughter of prosecutrix  (PW-4)’s  sister,  who  was  10
years old at the time of examination.   Before recording her evidence,  with
a view to test the capacity of the witness to depose before the  Court,  the
Court questioned her about her blood relations, education and as to  whether
one should speak the  truth  or  lie  and  on  being  satisfied,  PW-10  was
questioned. The trial Court,  after  scrutinizing  the  replies  and  noting
that the girl child was answering the questions in a rationale manner  found
her to be a competent witness.  Thereafter when she was  asked  to  identity
the accused, she made it clear that they were not the persons.  The  witness
further deposed that prosecutrix (PW-4) is her aunt, that in the  year  2001
when she was sleeping in the house she did not know as to what  happened  or
as to anything happened at all.  Learned counsel with the permission of  the
Court, cross examined the said witness when she  deposed  that  two  persons
never entered her home or ever confined her or anybody else in any room  nor
they threatened anybody. She also deposed that their house  was  not  bolted
from outside and her brother did not open the door from outside.

11.   Jitender (PW-11) who was 20 years old at the time of  his  examination
stated in his chief examination that 3  years  prior  to  the  date  of  his
examination in the month of August, he was sleeping on the  roof  top,  that
he saw two persons quarrelling with his aunt, that he raised a hue and  cry,
that thereafter both the persons ran away and that  nothing  else  happened.
He also stated that he did not come down at  all.   He  totally  denied  the
sequence of events as alleged in the complaint and as narrated  by  PW-4  in
her evidence.

12.   Apart from the  above  version  of  the  prosecution  witnesses,  when
reference is made to the medical report relating to the prosecutrix  as  per
Annexure P-4, there was an injury of abrasion on right side neck  below  her
jaw and that there was no other injury either in the breast or  her  thighs.
The hymen was torn old, that there was no  injury  on  the  valva  and  that
there was no bleeding in her vagina.  In the FSL report Exhibit PW-14/N,  it
is stated that there  was  no  semen  detected  on  the  red  colour  socks.
However, human semen was  detected  on  the  petticoat.  But  there  was  no
matching of the blood group noted  on  the  petticoat  vis-à-vis  the  blood
group of the accused.

13.   Keeping the above evidence available on record, when  we  analyze  the
case of the prosecution as projected, we find  that  apart  from  the  total
prevaricating statement of the  prosecutrix  herself  in  her  oral  version
before the Court, the other two witnesses PWs10 and 11 who were  none  other
then her niece and nephew  not  supported  the  story  of  the  prosecution.
Leaving aside the version of the prosecutrix, we wonder why Noju (PW-10),  a
minor girl child should at all make a  statement  totally  conflicting  with
the case of the prosecution.   The  prosecutrix  being  her  maternal  aunt,
there is no reason for her to spin a  different  story  and  let  her  down.
Going by her version, the accused persons were never seen in  her  house  on
the date of occurrence.  She being minor child, the trial court  ascertained
her capability to depose as a  witness.   When  we  examine  the  nature  of
queries made by the learned trial Judge to the said witness,  we  find  that
her replies were all cogent and she knew for what purpose she  was  standing
before the Court. She was very much aware that  she  should  not  utter  any
falsehood.   The Court was, therefore, convinced of her composure  and  only
thereafter proceeded to record her statement.  The Court itself pointed  out
the accused present before the Court and asked her as to whether  they  were
present in her house on the date of incident, to which she  replied  without
any hesitation and deposed that they were not present.  She  went  one  step
ahead and made it clear that on that night nothing happened at  all.   Again
her brother Jitender (PW-11) stated that he heard  two  persons  quarrelling
with his aunt.  He also made it clear that apart from the said  quarrel  and
on his making a hue  and  cry  both  of  them  ran  away  and  nothing  else
happened.

14.   The other discrepancies which are to be mentioned are the  categorical
statement of the prosecutrix (PW-4) herself that after the alleged  forcible
sexual intercourse by both the accused, she wiped of her private parts  with
a red colour socks which was lying in the house, though at another place  it
was stated that both the accused used the red colour socks to wipe of  their
private parts after the  commission  of  the  offence.   Assuming  both  the
versions to be true, we find that the red colour  socks  sent  for  chemical
examination revealed that it did not contain any semblance of  semen  in  it
as per the FSL report Exhibit PW- 14/N. It was also pointed out  that  while
according to her the socks was handed over to the  police  in  the  hospital
when the petticoat and the socks were seized  from  her,  according  to  the
seizure memo the socks was recovered from the place of occurrence.  She  was
a married woman and except the semen found in the  petticoat,  there  is  no
other reliable evidence for implicating the accused-appellants to the  crime
alleged against them. In this background, when we refer to the oral  version
of the prosecutrix (PW-4),  as  pointed  out  by  learned  counsel  for  the
appellant, very many facts which were not found in  her  original  statement
were revealed for the first time before the Court.

15.   In our considered opinion, the ‘sterling witness’ should be of a  very
high quality and caliber whose version should, therefore,  be  unassailable.
The Court considering the version of such witness should be  in  a  position
to accept it for its face value without any hesitation. To test the  quality
of such a witness, the status of the witness would be  immaterial  and  what
would be relevant is the truthfulness  of  the  statement  made  by  such  a
witness. What would be  more  relevant  would  be  the  consistency  of  the
statement right from the starting point till the end, namely,  at  the  time
when the witness makes the initial  statement  and   ultimately  before  the
Court. It should be natural and consistent with the case of the  prosecution
qua the accused. There should not be any prevarication  in  the  version  of
such a witness.  The witness should be in a position to withstand the cross-
examination of any length and strenuous it may be and under no  circumstance
should give room for any doubt as to  the  factum  of  the  occurrence,  the
persons involved, as well as, the sequence of  it.  Such  a  version  should
have co-relation with each and everyone of other  supporting  material  such
as the recoveries made, the weapons used, the manner of  offence  committed,
the scientific evidence and the expert  opinion.  The  said  version  should
consistently match with the version of every other witness.  It can even  be
stated that  it  should  be  akin  to  the  test  applied  in  the  case  of
circumstantial evidence where there should not be any missing  link  in  the
chain of circumstances to hold the accused guilty  of  the  offence  alleged
against him. Only if the version of such a witness qualifies the above  test
as well as all other similar such tests to be applied, it can be  held  that
such a witness can be called as a ‘sterling witness’ whose  version  can  be
accepted by the Court without any  corroboration  and  based  on  which  the
guilty can be punished. To be more precise, the version of the said  witness
on the core spectrum of the crime  should  remain  intact  while  all  other
attendant materials, namely, oral, documentary and material  objects  should
match the said version in material particulars in order to enable the  Court
trying the  offence  to  rely  on  the  core  version  to  sieve  the  other
supporting materials for holding the offender guilty of the charge alleged.

16.   In the anvil of the above principles, when we test the version of  PW-
4, the prosecutrix, it is unfortunate that the said witness  has  failed  to
pass any of the tests mentioned above.  There  is  total  variation  in  her
version from what was stated in the complaint and what  was  deposed  before
the Court at the time of trial. There are  material  variations  as  regards
the identification of the accused persons, as well as, the manner  in  which
the occurrence took place.  The so-called eye witnesses did not support  the
story  of  the  prosecution.  The  recoveries  failed  to  tally  with   the
statements made. The FSL report did not co-relate the  version  alleged  and
thus the prosecutrix failed to instill the required confidence of the  Court
in order to confirm the conviction imposed on the appellants.

17.   With the above slippery evidence  on  record  against  the  appellants
when we apply the law on the subject, in the decision reported in  State  of
Punjab v. Gurmit Singh & Ors. (supra), this Court was considering  the  case
of sexual assault on an young girl below 16 years of age who hailed  from  a
village and was a student of 10th standard in  the  Government  High  School
and that when she was returning back to  her  house  she  was  kidnapped  by
three persons.  The victim was stated to have been taken to a tubewell  shed
of one of the accused where she was made to  drink  alcohol  and  thereafter
gang raped under the threat of murder.

18.   The prosecutrix in that case maintained the allegation  of  kidnapping
as well as gang rape.  However, when she was not able to refer to  the  make
of the car and its colour in which she was kidnapped and that  she  did  not
raise any alarm, as well as, the delay in  the  lodging  of  the  FIR,  this
Court held that those were all circumstances which could  not  be  adversely
attributed to a minor girl belonging to the poor section of the society  and
on that score, her version about the offence  alleged  against  the  accused
could not be doubted so long as  her  version  of  the  offence  of  alleged
kidnapping and gang rape was consistent in her evidence.  We, therefore,  do
not find any scope to apply whatever is stated in the  said  decision  which
was peculiar to the facts of that case, to be applied to the case on hand.

19.   In the decision reported in Ashok Kumar v. State of  Haryana  (supra),
this court while dealing with the offence under  Section  376  (2)  (g)  IPC
read with explanation held as under in Para 8:
        “8.Charge against the appellant is under Section 376(2)(g) IPC.  In
      order to establish an offence under Section 376(2)(g) IPC,  read  with
      Explanation  I  thereto,  the  prosecution  must  adduce  evidence  to
      indicate that more than one accused had acted in concert and  in  such
      an event, if rape had been committed by even one, all the accused will
      be guilty irrespective of the fact that she had been raped by  one  or
      more of them and it is not necessary for  the  prosecution  to  adduce
      evidence of a completed act of rape by each one  of  the  accused.  In
      other words, this provision embodies a principle  of  joint  liability
      and  the  essence  of  that  liability  is  the  existence  of  common
      intention; that common intention presupposes prior concert  which  may
      be determined from the conduct of offenders revealed during the course
      of action and it could arise and be formed suddenly, but,  there  must
      be meeting of minds. It is not  enough  to  have  the  same  intention
      independently of each of the offenders. In such cases, there  must  be
      criminal sharing marking out a certain measure  of  jointness  in  the
      commission of offence.”

20.   Applying the above principle to the case on hand, we find that  except
the ipse-dixit of the prosecutrix that too in her  chief  examination,  with
various additions and total somersault in the cross  examination   with   no
support  at  all  at  the  instance  of her niece and nephew  who  according
to her were present in the house at the time of occurrence, as well as,  the
FSL report which disclosed the absence of  semen  in  the  socks  which  was
stated to have been used by the accused as well as the prosecutrix  to  wipe
of  semen,  apart  from  various  other  discrepancies  in  the  matter   of
recoveries, namely, that  while  according  to  the  prosecutrix  the  watch
snatched away by the accused  was  ‘Titan’  while  what  was  recovered  was
‘Omex’ watch,  and the chain which was alleged to  have  been  recovered  at
the instance of the accused admittedly was  not  the  one  stolen,  all  the
above factors do not  convincingly  rope  in  the  accused  to  the  alleged
offence of ‘gang rape’ on the date and time alleged in the chargesheet.

21.   In the decision reported as State of Himachal Pradesh v.  Asha  Ram  -
AIR 2006 SC 381, this Court highlighted the importance to be  given  to  the
testimony of the prosecutrix as under in para 5:
            5. ………………………..It is now  well-settled  principle  of  law  that
    conviction can be founded on the testimony  of  the  prosecutrix  alone
    unless there are compelling  reasons  for  seeking  corroboration.  The
    evidence of a prosecutrix is more reliable  than  that  of  an  injured
    witness. The testimony of the victim of sexual assault is vital, unless
    there  are   compelling   reasons   which   necessitate   looking   for
    corroboration of her statement, the courts should find no difficulty in
    acting on the testimony of a victim of sexual assault alone to  convict
    an accused where her testimony inspires confidence and is found  to  be
    reliable. It is also a well-settled principle of law that corroboration
    as  a  condition  for  judicial  reliance  on  the  testimony  of   the
    prosecutrix is not a requirement of law  but  a  guidance  of  prudence
    under the given circumstances. The evidence of the prosecutrix is  more
    reliable than that of an injured witness. Even minor contradictions  or
    insignificant discrepancies in the statement of the prosecutrix  should
    not be a ground for throwing  out  an  otherwise  reliable  prosecution
    case.”
                                  (emphasis added)
22.   That was a case  where  the  father  alleged  to  have  committed  the
offence of rape on one of his daughters who was staying with him  while  his
wife was living separately due to  estranged  relationship.   While  dealing
with the said case, where the prosecutrix, namely, the daughter, apart  from
the complaint lodged by her, maintained her allegation  against  her  father
in the Court as well.  This Court held that the version of  the  prosecutrix
in the facts and circumstances of that case merited acceptance  without  any
corroboration, inasmuch as, the evidence of rape  victim  is  more  reliable
even that of  an  injured  witness.   It  was  also  laid  down  that  minor
contradictions and discrepancies are insignificant  and  immaterial  in  the
case of the prosecutrix can be ignored.  As compared to the  case  on  hand,
we find that apart from the prosecutrix not supporting her own version,  the
other oral as well as forensic evidence also do not support the case of  the
prosecution.   There  were  material  contradictions  leave  alone  lack  of
corroboration in the evidence of the prosecutrix. It  cannot  be  said  that
since  the  prosecutrix  was  examined  after  two  years  there  could   be
variation.  Even while giving allowance for the time gap  in  the  recording
of her deposition, she would not have come forward with  a  version  totally
conflicting with what she stated in her complaint, especially when  she  was
the victim of the alleged brutal onslaught  on  her  by  two  men  that  too
against her wish. In such circumstances, it  will  be  highly  dangerous  to
rely on such version of the prosecutrix in order to support the case of  the
prosecution.

23.   In the decision reported  as  Lalliram  &  Anr.  v.  State  of  Madhya
Pradesh (supra) in regard to an offence of gang rape falling  under  Section
376 (2) (g) this Court laid down the principles as under  in  paras  11  and
12:
            “11. It is true that injury is not a sine qua non  for  deciding
    whether rape has been committed. But it has to be decided on the factual
    matrix of each case. As was observed by this Court in  Pratap  Misra  v.
    State of Orissa where allegation is of rape by many persons and  several
    times but no injury is noticed that certainly is an important factor and
    if the prosecutrix's version  is  credible,  then  no  corroboration  is
    necessary. But if the prosecutrix's version is not credible  then  there
    would be need for corroboration. (See Aman Kumar v. State of Haryana.)
        12. As rightly contended by learned counsel for the  appellants,  a
      decision has to  be  considered  in  the  background  of  the  factual
      scenario. In criminal cases the question of a  precedent  particularly
      relating to appreciation of evidence is really of no  consequence.  In
      Aman Kumar case it was observed  that  a  prosecutrix  complaining  of
      having been a victim of the offence of  rape  is  not  an  accomplice.
      There is no rule of law  that  her  testimony  cannot  be  acted  upon
      without corroboration in material particulars. She stands on a  higher
      pedestal than the injured witness. In the latter case there is  injury
      in the physical form while in the former  both  physical  as  well  as
      psychological and emotional. However, if the court finds it  difficult
      to accept the version of a prosecutrix  on  the  face  value,  it  may
      search for evidence direct or circumstantial.”
                                            (emphasis added)
24.   When we apply the above principles to the case on hand,  we  find  the
prevaricating statements of the prosecutrix herself in  the  implication  of
the accused to the alleged offence of  gang  rape.   There  is  evidence  on
record that there was  no  injury  on  the  breast  or  the  thighs  of  the
prosecutrix and only a minor abrasion on the right side neck below  jaw  was
noted while according to the prosecutrix’s original version, the  appellants
had forcible sexual intercourse one after the other against  her.   If  that
was so, it is hard to believe that there was no other injury on the  private
parts of the prosecutrix as highlighted in the said decision.  When  on  the
face  value  the  evidence  is  found  to  be   defective,   the   attendant
circumstances and other evidence have to  be  necessarily  examined  to  see
whether the allegation of gang rape was true.   Unfortunately,  the  version
of the so called eye witnesses to at least the initial  part  of  the  crime
has  not  supported  the  story   of   the   prosecution.    The   attendant
circumstances also do not co-relate  to  the  offence  alleged  against  the
appellants.  Therefore, in  the  absence  of  proper  corroboration  of  the
prosecution version to the alleged offence, it will  be  unsafe  to  sustain
the case of the prosecution.

25.   In the decision reported as Krishan Kumar Malik v.  State  of  Haryana
(supra) in respect of the offence of gang rape under Section  376  (2)  (g),
IPC, it has been held as under in paras 31 and 32:
        “31. No doubt, it is true  that  to  hold  an  accused  guilty  for
      commission of an  offence  of  rape,  the  solitary  evidence  of  the
      prosecutrix is sufficient provided the same  inspires  confidence  and
      appears to be absolutely trustworthy, unblemished  and  should  be  of
      sterling quality. But, in the  case  in  hand,  the  evidence  of  the
      prosecutrix,  showing  several  lacunae,  which  have   already   been
      projected hereinabove, would go to show that  her  evidence  does  not
      fall in that category and cannot be relied upon to hold the  appellant
      guilty of the said offences.


        32. Indeed there are several  significant  variations  in  material
      facts in her Section 164 statement, Section 161 statement (CrPC),  FIR
      and deposition in court. Thus, it was necessary to  get  her  evidence
      corroborated independently, which  they  could  have  done  either  by
      examination of Ritu, her sister or Bimla Devi, who were present in the
      house at the time of her alleged  abduction.  The  record  shows  that
      Bimla Devi though cited as a witness was not examined and later  given
      up by the public prosecutor on the ground that she has been  won  over
      by the appellant.”
                                           (emphasis added)

26.   Applying the said principles to the facts of  the  case  on  hand,  we
find that the solitary  version  of  the  chief  examination  of  PW-4,  the
prosecutrix cannot be taken as gospel truth for its face value  and  in  the
absence of any other supporting evidence, there is no scope to  sustain  the
conviction and sentence imposed on the appellants.

27.   The prosecution has miserably failed to establish the  guilt  of  gang
rape falling under Section 376 (2) (g),  IPC  against  the  appellants.  The
conviction and sentence imposed on the appellants by  the  trial  Court  and
confirmed by the impugned order of the  High  Court  cannot,  therefore,  be
sustained.  The appeals are allowed.  The judgment and order  of  conviction
and sentence passed by the trial Court and confirmed by the High  Court  are
hereby set aside.  The appellants are acquitted of all the charges and  they
be set at liberty forthwith, if not required in any other case.

                                                      …..……….…………………………...J.
                                                           [Swatanter Kumar]




                                                        …………….………………………………J.
                               [Fakkir Mohamed Ibrahim Kalifulla]


 New Delhi;
 August  7, 2012
-----------------------
26

406. Punishment for criminal breach of trust.- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 409. Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Section 409 enables the Court to award imprisonment for life or imprisonment up to ten years alongwith fine. Considering the fact that the appellant was awarded imprisonment for 6 months alongwith a fine of Rs. 1,000/- only, we feel that the same is not excessive. On the other hand, we are of the view that persons dealing with the property of the Government and entrusted with the task of distribution under FFWS, it is but proper on their part to maintain true accounts, handover coupons to the Mandal Revenue Office and to execute the same fully and without any lapse. Such recourse has not been followed by the appellant. The courts cannot take lenient view in awarding sentence on the ground of sympathy or delay, particularly, if it relates to distribution of essential commodities under any Scheme of the Government intended to benefit the public at large. Accordingly, while rejecting the request of the learned senior counsel for the appellant, we hold that there is no ground for reduction of sentence. 12) Under these circumstances, we find no merit in the appeal. Consequently, the same is dismissed. In view of the dismissal of the appeal, the order granting exemption from surrender is revoked and the appellant has to surrender within four weeks and serve out the remaining period of sentence.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                                      1


               2 CRIMINAL APPEAL NO.   1159           OF 2012


                3 (Arising out of SLP (Crl.) No. 7526 of 2011






Sadhupati Nageswara Rao                         .... Appellant(s)

            Versus

State of Andhra Pradesh                               .... Respondent(s)




                               J U D G M E N T

P. Sathasivam, J.
1)    Leave granted.
2)    This appeal is filed  against  the  impugned  order  dated  08.04.2011
passed by the High Court of  Judicature,  Andhra  Pradesh  at  Hyderabad  in
Criminal Revision Case No. 295 of 2005 whereby the High Court dismissed  the
Revision filed by the appellant herein  and  confirmed  the  conviction  and
sentence imposed upon him under Section 409 of the Indian Penal  Code,  1860
(hereinafter referred to as “IPC”) by the trial Court.
3)    Brief facts:
(a)   The appellant was the Fair Price Shop dealer  of  Stuartpuram  village
and also in-charge dealer of Fair Price  Shop  at  Chinabethapudi.   He  was
entrusted with the task of distribution of rice at free of cost under  “Food
For Work Scheme”  (FFWS)  to  the  workers  on  production  of  coupons,  to
maintain proper accounts and to handover the  said  coupons  to  the  Mandal
Revenue Office to that effect.
(b)   During the 17th Janma Bhoomi programme, on  03.06.2002,  one  Nadendla
Jakraiah filed a complaint against  the  appellant  to  the  Mandal  Revenue
Officer  (MRO),  Bapatla  regarding  the  irregularities  committed  in  the
distribution of essential commodities to the public and  requested  to  take
necessary action in  the  matter.   The  MRO,  Bapatla  forwarded  the  said
complaint to the Deputy Tahsildar of Civil Supplies, Bapatla to inspect  the
fair price shop of the appellant and to take necessary action.
(c)    On  25.07.2002,  the  Deputy  Tahsildar  along  with  other   Revenue
officials visited the Fair Price Shop of  the  appellant  at  Chinabethapudi
and also at Stuartpuram Village.  On inspection of the Fair  Price  Shop  at
Chinabethapudi, the Revenue officials found the goods/stocks  lying  therein
tallied with the records/Stock Register.  In the similar  manner,  when  the
fair price shop at Stuartpuram was inspected, the  Revenue  officials  could
not find the records/Stock  Registers,  pursuant  to  the  same,  they  made
inventory of the goods lying in the shop and seized the same.  According  to
the appellant, in the evening, he went to the Mandal  Revenue  Office  along
with the records/registers and coupons but the revenue officials refused  to
look into the same and informed him that action had been  initiated  against
him.  Thereafter, the appellant sent a FAX/Telegram to the Joint  Collector,
Mandal Revenue Office.
(d)   On 27.07.2002, the Revenue  Officials  (Civil  Supplies)  visited  his
Fair Price Shop at Chinabethapudi and took inventory of  the  stock  in  the
shop and asked the appellant to sign the papers which were already  prepared
by them.
(e)   On 31.07.2002, the MRO  lodged  a  complaint  with  the  S.H.O.,  P.S.
Vedullapalli which was registered as FIR in  Crime  No.  22  of  2002  under
Sections 409 and 420 of IPC.  After investigation, the police  arrested  the
appellant on 30.09.2002.
(f)   After considering the evidence, the  II  Addl.  Jr.  Civil  Judge-cum-
Judicial First Class Magistrate, Bapatla, by judgment  dated  22.05.2004  in
C.C. No. 7/2003, found the  appellant  guilty  for  the  offence  punishable
under  Section  409  IPC  and  not  guilty  under  Section  420   IPC   and,
accordingly, convicted and sentenced him to suffer simple  imprisonment  for
6 months and also to pay a  fine  of  Rs.1,000/-,  in  default,  to  further
undergo simple imprisonment for 1 month.
(g)   Aggrieved by the said judgment,  the  appellant  preferred  an  appeal
being Criminal Appeal No. 210 of 2004 before the Ist Addl.  Sessions  Judge,
Guntur.  The Sessions  Judge,  by  order  dated  08.02.2005,  dismissed  his
appeal and confirmed the order passed by the IInd Addl. Jr. Civil Judge-cum-
Judicial First Class Magistrate dated 22.05.2004.
(h)   Against the said order, the appellant filed Criminal Revision No.  295
of 2005 before the High Court of Andhra Pradesh.  By  impugned  order  dated
08.04.2011, the High Court dismissed the Revision  filed  by  the  appellant
and confirmed the judgment passed by the Addl. Sessions Judge, Guntur.
(i)   Challenging the said order  of  the  High  Court,  the  appellant  has
preferred this appeal by way of special leave before this Court.
4)    Heard Mr. V. Giri, learned senior counsel for the  appellant  and  Mr.
Mayur Shah, learned counsel for the respondent-State.
5)    Mr. V. Giri, learned senior counsel for the  appellant,  after  taking
us through the necessary ingredients of Section 409 of IPC and the  evidence
led in, submitted that there was no acceptable material  to  establish  that
the appellant dishonestly misappropriated the foodgrain which was meant  for
workers under FFWS.  He also pointed out  that  the  prosecution  failed  to
prove the fraudulent dishonest intention on the part of the  appellant.   He
finally submitted that inasmuch as the prosecution witnesses being  Nos.  2,
3, 4 and 6 are official  witnesses  and  not  independent  witnesses,  their
evidence  without  corroboration  with  the  independent  witness,  casts  a
reasonable doubt on the veracity of the prosecution allegation.

6)    On the other hand, Mr. Mayur Shah,  learned  counsel  for  the  State,
after taking us through the entire materials placed by the  prosecution  and
reasonings of the Courts below, pleaded for confirmation of  the  conviction
and sentence imposed on the appellant.
7)    In order to appreciate the above contentions, it is  useful  to  refer
the definition and punishment  of  criminal  breach  of  trust  and  related
provision provided under Sections 405, 406 and 409 IPC which read as under:-

      “405.  Criminal  breach  of  trust.-  Whoever,  being  in  any  manner
      entrusted  with  property,  or  with  any  dominion   over   property,
      dishonestly misappropriates or converts to his own use that  property,
      or dishonestly uses or disposes of that property in violation  of  any
      direction of law prescribing the mode in which such  trust  is  to  be
      discharged, or of any legal contract, express or implied, which he has
      made touching the discharge of such trust, or  willfully  suffers  any
      other person so to do, commits “criminal breach of trust”.


      406.  Punishment  for  criminal  breach  of  trust.-  Whoever  commits
      criminal breach of trust shall be punished with imprisonment of either
      description for a term which may extend to three years, or with  fine,
      or with both.


      409. Criminal breach  of  trust  by  public  servant,  or  by  banker,
      merchant or agent.-  Whoever,  being  in  any  manner  entrusted  with
      property, or with any dominion over property  in  his  capacity  of  a
      public servant or in the way of his business as  a  banker,  merchant,
      factor, broker, attorney or agent, commits criminal breach of trust in
      respect of that property, shall  be  punished  with  imprisonment  for
      life, or with imprisonment of either description for a term which  may
      extend to ten years, and shall also be liable to fine.”

In order to prove the offence of criminal breach  of  trust  which  attracts
the provision of Section 409 IPC, the prosecution must prove  that  one  who
is, in any manner, entrusted with the property, in this case as a dealer  of
fair price shop, dishonestly misappropriates the property, commits  criminal
breach of trust in respect of that property.  In other words,  in  order  to
sustain conviction under Section 409 IPC, two ingredients are to be  proved:
namely, i) the accused, a public servant or a banker or agent was  entrusted
with the property of which he is duty bound to  account  for;  and  ii)  the
accused has committed criminal breach of trust.  What  amounts  to  criminal
breach of trust is provided under Section 405 IPC.   The  basic  requirement
to bring home the accusations under Section  405  are  the  requirements  to
prove conjointly i) entrustment and ii) whether the accused was actuated  by
dishonest intention or not, misappropriated it or converted it  to  his  own
use to the detriment of the persons who entrusted it.
8)    In the light of  the  above  broad  principles,  let  us  examine  the
materials relied on by the prosecution.  To prove  the  above  offence,  the
prosecution examined PWs 1-6, viz., Mandal Revenue  Officer  (PW-1),  Deputy
Tahsildar  (Civil  Supplies)  (PW-2),  Revenue  Inspector  (PW-3),   Village
Secretary (PW-4).   In order to prove the  offence  of  criminal  breach  of
trust, the prosecution must prove that  the  accused  was,  in  any  manner,
entrusted with the property of the Government.  In addition to the  official
witnesses, viz., PWs 1-4, the prosecution also  examined  Nadendla  Jakraiah
(PW-5), who worked as an Attender in Cooperative Society, Bethapudi and  the
beneficiary along with the appellant. In his examination,  he  deposed  that
he purchased the essential commodities from  the  Fair  Price  Shop  of  the
appellant even without having a ration card.  He was the person who  gave  a
report to the MRO, PW-1 under Exh. P1.  He also  admitted  that  he  had  no
ration card at all.  It is true that at a later point of  time  though  PW-5
turned hostile, in his cross examination, he admitted that  in  Exh.  P1  he
mentioned  that  the  appellant  accused  was  not  distributing   essential
commodities properly to  the  beneficiaries.   The  Magistrate  has  rightly
observed  that  how  is  it  possible  that  PW-5  was  receiving  essential
commodities from the shop of the accused without having a ration card.
9)    Though PWs 2 to 4 are Government Officials, PW-5  is  the  beneficiary
of the fair price shop of the accused and PW-6 is  the  I.O.   All  of  them
stated that the accused was running Fair Price Shop at Stuartpuram and  also
in-charge of Fair Price Shop at Chinabethapudi. As per the orders  of  PW-1,
on 25.07.2002, PWs 2 and 3, along with PW-4 and some others, carried out  an
inspection  over  the  Fair  Price  Shops  of   the   appellant-accused   at
Chinabethapudi and Stuartpuram and submitted a  Report.   PW-3  stated  that
the appellant-accused disposed of 67.65 quintals of  rice  in  black  market
intended for FFWS.  According to these witnesses,  the  value  of  foodgrain
was around Rs. 84,562/-.   On  the  same  day,  i.e.,  on  25.07.2002,  PW-2
recorded the statement of  the  appellant-accused  under  Exh.  P-7  wherein
nowhere he denied the contents of the said  statement.   It  is  also  clear
from the prosecution evidence that the appellant was not in  a  position  to
show the correct details, particularly, the handing  over  of  rice  to  the
beneficiaries by securing coupons/vouchers from them.  Though it was  stated
by the appellant that all those coupons/vouchers were with  his  father,  it
was demonstrated that his father failed to turn up even  after  twelve  noon
on 25.07.2002.  There is no dispute that the appellant  was  entrusted  with
13.8 quintals of rice, 387 litres of kerosene in respect  of  Chinabethapudi
Fair Price Shop in the month of June, 2002 and he was  also  entrusted  with
6.88 quintals of rice and 213 litres of kerosene in respect  of  Stuartpuram
Fair Price Shop.  It  is  also  clear  from  the  evidence  led  in  by  the
prosecution that the appellant had failed to  submit  the  coupons  for  the
deficiency found by the  inspecting  officers.   Though  the  appellant  has
pleaded that in the same evening, he went and  met  the  officers  concerned
along with the coupons, it has come on record that those  coupons  does  not
belong to the persons alleged to the above mentioned Fair Price  Shop.   The
materials placed by the prosecution  show  that  the  appellant-accused  had
dishonest  intention  not  to  distribute   the   rice   properly   to   the
beneficiaries and an offence of criminal breach of trust could be made  out.
 As observed earlier, the coupons filed by the appellant-accused  belong  to
Ramnagar and not to Stuartpuram village.  The fact remains that on the  date
of inspection, the rice was disbursed without proper coupons.
10)   The trial Court, after considering all  the  materials,  came  to  the
conclusion that the evidence of PWs 1 to 6 is reliable  and  trustworthy  in
relation  to  the  offence  in  proving  entrustment  of  property  of   the
Government to the accused.    In the case on hand, the appellant,  an  agent
entrusted with the distribution of rice under the  “Food  for  Work  Scheme”
(FFWS)  to  the  workers  on  production  of  coupons,  was   charged   with
misappropriation of 67.65 quintals of rice.  The evidence also  proves  that
there was entrustment of property to the accused.  All  these  aspects  have
been rightly considered by the trial Court and found  the  appellant  guilty
of the  offence  punishable  under  Section  409  IPC.   The  appellate  and
revisional  court,  on  appreciation  of  the  materials   placed   by   the
prosecution and defence, confirmed the same.  We  are  in  entire  agreement
with the said conclusion.
11)   Mr. Giri, learned senior counsel  for  the  appellant  submitted  that
inasmuch as the alleged occurrence took place in 2002, some leniency may  be
shown  on  the  sentence  imposed.   We  are  unable  to  accept  the   said
contention.  Section 409 enables the Court to award  imprisonment  for  life
or imprisonment up to ten years alongwith fine.  Considering the  fact  that
the appellant was awarded imprisonment for 6 months alongwith a fine of  Rs.
1,000/- only, we feel that the same is not excessive.  On  the  other  hand,
we are of the view that persons dealing with the property of the  Government
and entrusted with the task of distribution under FFWS, it is but proper  on
their part to  maintain  true  accounts,  handover  coupons  to  the  Mandal
Revenue Office and to execute the same fully and without  any  lapse.   Such
recourse has not been followed by the appellant.   The  courts  cannot  take
lenient view in awarding sentence  on  the  ground  of  sympathy  or  delay,
particularly, if it relates to distribution of essential  commodities  under
any Scheme of the Government  intended  to  benefit  the  public  at  large.
Accordingly, while rejecting the request of the learned senior  counsel  for
the appellant, we hold that there is no ground for reduction of sentence.


12)    Under  these  circumstances,  we  find  no  merit  in   the   appeal.
Consequently, the same is dismissed.   In  view  of  the  dismissal  of  the
appeal, the order granting exemption  from  surrender  is  revoked  and  the
appellant has to surrender within four weeks and  serve  out  the  remaining
period of sentence.






                             ...…………….…………………………J.


                                 (P. SATHASIVAM)






                             ..…....…………………………………J.


                              (RANJAN GOGOI)


NEW DELHI;
AUGUST 03, 2012.
-----------------------
13

the only question which remained to be considered was the competence of the Allahabad High Court to entertain a writ petition from an order passed by the Debts Recovery Tribunal, Delhi,

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO(s).5696   OF 2012
[@Petition(s) for Special Leave to Appeal (Civil)23150/2012
                                                 CC 12128/2012]



   M/S. OPTIEMUS INFRACOM LTD.                       Appellant(s)

                 VERSUS

   M/S. ISHAN SYSTEMS PVT.LTD. & ANR.                Respondent(s)


                                    WITH

                       CIVIL APPEAL NO(s).5697   OF 2012
[@Petition(s) for Special Leave to Appeal (Civil)23161/2012
                                                   CC 12468/2012]


   M/S.PHOENIX ARC PVT. LTD.                       Appellant(s)


                                   VERSUS


   M/S. ISHAN SYSTEMS PVT. LTD.                 Respondent(s)


                                  O R D E R


   1.   Two Special Leave Petitions have been filed  against  the  judgment
   and order dated 14th February, 2012, passed by the Allahabad High Court,
   in  Civil Miscellaneous Writ Petition No.8409/2012.
   2.   The first Special Leave Petition has been filed  by  M/S.  OPTIEMUS
   INFRACOM LTD., being SLP(C)......CC 12128/12.   the second Special Leave
   Petition  has  been  filed  by  M/S.   PHOENIX   ARC   PVT.LTD.,   being
   SLP(C)......CC 12468/12.
   3.   Delay condoned.
   4.   Leave granted in both the Special Leave Petitions.
   5.   Writ Petition No.8409 of 2012, was filed by  the  respondent,  M/S.
   ISHAN SYSTEMS PVT.LTD.& ANR., against the judgment and order dated  11th
   April, 2011, whereunder the property of  the  respondent/judgment-debtor
   Co. was  put  to  auction.    An  application  had  been  filed  by  the
   respondent-company before the Debts  Recovery  Tribunal  complaining  of
   violation of the statutory rules which regulate the auction of property.
     Other grounds were also taken, but the same were rejected by the  High
   Court.   In fact, the High Court, after examining  the  records  of  the
   writ petition, had found no good ground to interfere with the  order  of
   the Appellate Authority.   Instead of stopping  there,  the  High  Court
   went on further  to  give  various  directions  to  the  Debts  Recovery
   Tribunal, to proceed and decide the application, which had been filed by
   the respondent  No.1/petitioner,  being  S.A.No.714/2011.    By  another
   direction the auction purchaser was restrained from  making any  further
   transfer of the property in question and any construction  raised  would
   abide by the orders to be passed in the pending application  before  the
   Debts Recovery Tribunal.   With the aforesaid directions, the High Court
   disposed of the writ petition finally.
   6.   The said judgment and order of the High Court had  been  questioned
   on the ground that having found no ground to interfere with the order of
   the Appellate Authority, the learned Judge of the High Court should  not
   have  passed other orders, and, in particular, an order  of  injunction,
   which was to the prejudice of the appellant before us,  without  issuing
   notice or giving the appellant  an opportunity of hearing.
   7.   Since the  writ petition was disposed of on the very  first   date,
   without notice to the respondents, there was no occasion to consider the
   competence of the Allahabad High Court to entertain the  writ  petition.
    Subsequently, another  writ  petition  was  filed  by  the  respondents
   herein, being No.35215 of 2012, before the  Allahabad  High  Court,  for
   quashing the order dated 10th July, 2012, which had been passed  by  the
   D.R.T.-III, Delhi, by which the application  filed  by  the  respondents
   herein under Section 17(1) of the   Securitisation and Reconstruction of
   Financial Assets and Enforcement of Security  Interest  Act,  2002  (the
   SARFAESI Act), was rejected.    In the said petition,  the  question  of
   jurisdiction  was  raised  and  was  heard  and  decided  against    the
   respondents herein.   In  fact,  reference  was  made  in  the  judgment
   delivered on 30th July, 2012, to the earlier writ petition  and  it  had
   been  observed  that  although,  the  earlier  writ  petition  had  been
   entertained  by  the  Allahabad  High  Court,  the  issue  relating   to
   jurisdiction had not been gone into, since the writ  petition  had  been
   disposed of on the first date, without hearing the respondents.
   8.   Ultimately, the learned Judge accepted the  preliminary  objections
   raised on behalf of the appellants herein  and held that  the  Allahabad
   High Court had no  jurisdiction  to  entertain  the  writ  petition  and
   dismissed the same accordingly.
   9.   Both, S/Shri Venugopal and Ranjit Kumar, learned  senior  advocates
   appearing for the appellants  in  these  two  appeals,  submitted  that,
   although, the order of the High Court has to some extent been worked out
   and the sale which had  been  effected  has  been  confirmed,  the  only
   question which remained to be  considered  was  the  competence  of  the
   Allahabad High Court to entertain a writ petition from an order   passed
   by the Debts Recovery Tribunal, Delhi, and the fact that  the  same  was
   disposed of on the very first day, without notice,  by   issuing  orders
   and directions which prejudiced  the appellants.
   10.  Mr. Chetan  Sharma,  learned  senior  advocate  appearing  for  the
   respondents, has tried to impress upon us that the order  of  injunction
   which was passed by the Allahabad High Court  was innocuous and that  it
   did not prejudice or adversely affect the  appellants  in  any  way  and
   since the sale has  been  confirmed,  nothing  further  remained  to  be
   decided, as far as the said question is concerned.
   11.  It is true that the impugned order has more or less  worked  itself
   out, but it needs to be indicated that the practice which was adopted by
   the Allahabad High Court, is not only arbitrary, but  also  contrary  to
   the concept of  the principles of  natural  justice.    Since  the  writ
   petition was to be dismissed without issuing notice, it should have been
   dismissed   without  giving  any  further  directions  in  the   matter.
   Instead, certain positive instructions were given to the respondents and
     one of the respondents was restrained from dealing with the  property,
   without any notice to him/them.   If there was any intention on the part
   of the learned Judge to protect the properties in  question  during  the
   pendency of the matter before the Debts Recovery  Tribunal,  the  proper
   course of action would have been to issue  notice,  and,  if  necessary,
   pass interim orders and, thereafter, after hearing the parties  to  pass
   final orders in the matter.
   12.  We hope that in future, this kind of order will be avoided  in  the
   interest of justice and also having regard to the principles of  natural
   justice.
   13.  The appeals are allowed.  The impugned judgment to the extent  that
   it restrains the appellants from alienating or encumbering the property,
   is hereby set aside.
   14.  The appeals are  disposed of, accordingly.

                                      ...................J.
                              (ALTAMAS KABIR)


                                                       ...................J.
                              (J.CHELAMESWAR)
    NEW DELHI;
    August 01, 2012.