B.BHATTACHARYA, J. - (1.) This criminal revisional application is directed against the order dated 19.10.2001 passed by the learned Sessions Judge, the A & N Islands, at Port Blair thereby partly allowing the criminal appeal preferred by the present petitioners against an order of conviction under Section 409 of the Indian Penal Code passed by the learned Judicial Magistrate 1st Class, Mayabunder In GR Case No. 319 of 1989 (TR No. 63 of 1992).
(2.) The petitioner No. 1 was working as Statistical Assistant in the office of Child Development Project, Middle Andaman, Rangat and the petitioner No. 2 was entrusted with the responsibility to purchase/procure and distribute biscuits to Anganwadi Centres under the Angawadi Project in the Middle Andaman area. The prosecution alleged that both the petitioners were entrusted with 60 tins of biscuits to distribute to the Anganwadi Centers. Out of those 60 tins, the petitioners kept 30 tins in the shop premises of a Project Contractor (Shivakami Stores) for the purpose of misappropriation of those biscuit tins. Allegation was also made against an additional accused namely, P. Subbaiah, who was in charge of the said shop room. The police submitted charge-sheet against the petitioners and the 3rd accused alleging the offences under Sections 409/468/471/34 of the I.P.C. in the court of the learned Judicial Magistrate. 1st Class, Mayabunder. Ultimately, the learned Trial Magistrate framed charge against the petitioners under Sections 409/4F8/471/34 of the I.P.C. and separate charge was framed under Section 411 of the I.P.C. against the other accused namely P. Subbaiah. At the time of trial. prosecution examined 45 witnesses out of the list of 54 witnesses submitted with the charge-sheet. After the prosecution closed its case, the learned Trial Magistrate examined the petitioners as well as the co-accused P. Suhbaih under Section 313 Criminal Procedure Code. The petitioner No 1 Abdul Hameed while being examined under Section, 313 Criminal Procedure Code made inter alia, the following statements "We kept the biscuit tins at the Shivakami Stores as per instruction of CDPO namely Gin Raj Singh Thakur because there was no separate store room in CDPO's office. We told Mr. Subbaiah that we would get it on the next day and he agreed. We kept 30 tins biscuits there. On the next day Subbaiah (the co-accused) told that the biscuits are seized and then we informed the matter to CDPO. We were implicated in a false case." It may not be out of place to mention here that the learned Trial Magistrate examined the co-accused P. Subbaiah under the same Section and in answer to the question No. 4, the said P. Subbaiah stated as follows : "Ans : On relevant date at about 3 PM when the Anganwadi school was closed, the other two accused kept the biscuit tins in vamadah of my shop, and told that they would again get it on next day at 7AM for distribution."
(3.) After hearing the arguments on behalf of the prosecution and the defence, the learned Trial Magistrate by the judgment dated June 27, 2000 acquitted the co-accused P. Subbaiah of the charge under Section 411 of the IPC but. convicted each of the petitioners under Section 409 of the IPC and sentenced each of them to simple imprisonment for three years and imposed a fine of Rs. 500/-. The learned Trial Magistrate, however, acquitted the petitioners of the offences charged under Sections 468 and 471 of the IPC.;