SARASWATI PRASAD Vs. REX

JUDGEMENT

(1.) The appellant, Saraswati Prasad was convicted by Mr. Khadim Ali, Additional Assistant Sessions Judge, Faizabad, on 17 March 1948, under Section 409, Penal Code, and sentenced to rigorous imprisonment for five years and a fine of Rs. 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 17 January 1917, Rs. 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 29 January 1947, at about 10 P.M. he had been robbed of the money. The prosecution alleged that the appellant had criminally misappropriated the sum of Rs. 3000 and had committed criminal breach of trust in respect thereof. The appellant admitted his employment and receipt of Rs. 3000 for the purpose of purchasing paddy but stated that he in fact was robbed on the night of 29 January 1947, about two furlongs away from Suchhittaganj Bazar by four persons. The case was tried by a jury and the unanimous 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 Secs.409 and 405, Indian 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 before the jury, and that on account of these misdirections there has been a failure of justice and the conviction and sentence ought to be set aside. I have heard the learned Counsel and am satisfied that the appeal must be allowed.