KALIMULLAH KHAN,J. - (1.) THIS criminal appeal has been preferred against the judgment and order dated 13.10.1986, passed by Special Judge, Basti in Sessions Trial No.2 of 1986, convicting and sentencing the appellant Tilakdhari Singh s/o Deo Narain Singh, r/o Dumari. P.S.Sahjanwa, District Gorakhpur, to undergo a rigorous imprisonment for 5 years u/s 5(1) (c) read with 5(2) of the Prevention of Corruption Act, 1947 and convicting the appellant u/s 409 IPC and sentencing him to undergo 3 years rigorous imprisonment. Both the sentences were directed to run currently. The impugned judgment and order has been challenged on the ground that besides being perverse, it is illegal.
(2.) IN nutshell, the prosecution case is that accused Tilakdhari Singh was a public servant being employed as Assistant Agriculture Inspector in the Agriculture Department. He was posted as Incharge of Babhnan Seed Godown from 25.12.1967 to December, 1970. He was also the Incharge of Agriculture Seed Godown, Chhapiya, District Gonda. He was entrusted with the stock of seed and manures kept in the said godowns. He was to maintain the accounts of the seed and manures of the said godowns. It is alleged that the godown at Babhnan, district Basti was set on fire on 6.9.1970 at 4.00 a.m. as a result of which manures were damaged causing a loss to the exchequer. An F.I.R. at crime no.168/70 was registered u/s 436 IPC against unknown person on 6.9.1970 at 9.15 a.m. in the absence of applicant. Investigation followed. After completing the investigation, final report u/s 173 Cr.P.C. was submitted by I.O. However, on physical verification, in the absence of the appellant, it was detected that there was a loss of manures valued Rs.2,03,362.19. During the relevant days, the appellant was absent from his duty. He had sent a number of applications seeking casual leave but none of them was allowed for want of leave in his account. Undisputedly, the appellant did not turn up for the physical verification of the manures in question. Hence, it was resolved by the department that he had misappropriated and embezzled the fertilizer in question. Applicant was charged for the offence punishable u/s 5 (1) (C) and 5 (2) of the Prevention of Corruption Act, 1947 as well as Section 409 I.P.C. Appellant accused pleaded not guilty and claimed his trial. Prosecution examined as much as 15 prosecution witnesses. Appellant accused was examined u/s 313 Cr.P.C. in which he challenged the prosecution story, allegations and evidence made and occurred against him during trial. However, he was called upon to enter into his defence and he examined Shri Kailash Lal as D.W.1 in support of his case, he deposed that he was an employee as Kamdar at Chhapiya Godown where as employee Indra Jeet was posted at Babhanan Godown when accused Tilakdhari went on leave, he had assigned the responsibility of supervision of the godown at Chhapiya to him and that of Babhanan godown to Indra Jeet. In the absence of accused Tilakdhar, Babhnan Godown was set on fire for which Indra Jeet was held guilty in departmental enquiry and his services were terminated. Tilakdhari is innocent.
(3.) HAVING heard learned counsel for the prosecution and defence, learned trial court held the appellant guilty and after recording conviction, sentenced him as stated above.;