The burden of proof lies with the prosecution to establish guilt beyond reasonable doubt, but the respondent's defense must compete in probability with the prosecution's case to cast doubt on the prosecution's version.

JUDGMENT :

VIBHU BAKHRU, J.

1. The present appeal arises out of the judgment dated 10.06.2016 passed by the Learned ASJ, West, Tis Hazari Courts, whereby the respondent’s appeal against a judgment dated 27.03.2015 and the order on sentence dated 27.05.2015 convicting him for an offence punishable under Section 409 of the Indian Penal Code, 1860 (IPC) was allowed and he was acquitted of the offence for which he was charged.

2. By way of the impugned judgment, the learned ASJ also set aside the order on sentence dated 27.05.2015, whereby the respondent was sentenced to undergo rigorous imprisonment of three years and to pay a fine of Rs.10,000/- for the offence punishable under Section 409 of the IPC.

3. The case set up by the prosecution is that on 02.07.2003, the respondent, who was posted as Head Constable at PS Kirti Nagar, was issued a 9 mm pistol having body no. 1621-7120 with butt number DP 5918, along with 10 live cartridges. It is alleged that on 07.07.2003, HC Vinay – MHC(M) of PS Kirti Nagar – came to know that the respondent has not returned the pistol and live cartridges and the same was recorded by HC Vinay through a diary entry DD no. 44B dated 07.07.2003. Thereafter, HC Dalbir was sent to the house of the respondent and after his return, he disclosed that the respondent had suffered injuries. According to HC Dalbir, the respondent had informed him that as a result of falling down, his pistol got damaged and he would deposit the same after getting it repaired. It is further alleged that several visits were made to the respondent’s house by police officials but the respondent did not deposit the said pistol and the cartridges at the police station.

4. A charge sheet was filed after the conclusion of investigation. A charge for the offence punishable under Section 409 of the IPC was framed against the respondent, to which he pleaded not guilty and claimed trial.

5. The prosecution examined fifteen witnesses to prove its case. By a judgment dated 27.03.2015, the learned MM convicted the respondent/accused, by a judgment dated 27.03.2015, under Section 409 of the IPC. Further, by an order dated 27.05.2015, the respondent/accused was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of 10,000/- and in default of payment, to undergo simple imprisonment for ten days.

6. The respondent filed an appeal against the judgment dated 27.03.2015 and 27.05.2015, whereby his conviction and the order on sentence was set aside by way of the impugned judgment. The Sessions Court, after perusing the evidence as obtaining in the case, held that the accused had given a reasonable and probable explanation as to the disappearance of the pistol and cartridges which were assigned to him. It further held that the pistol and cartridges could not be recovered despite the investigation carried out by the police and further there was no allegation regarding the misuser of the pistol and the cartridges by the accused. The Court observed that the act of the accused seemed to fall in the category of “carelessness or neglect in discharge of official duty rather than criminal misappropriation” and that carelessness cannot be treated as an act of dishonest intention or criminal breach of trust.

7. In view of the above, the Sessions Court acquitted the respondent (accused) of the offence he was charged with.

Evidence

8. Before proceedings further, it is relevant to briefly examine the evidence led by various witnesses.

9. HC Mahaveer, who was posted as Duty Officer at PS Kirti Nagar from 12 pm to 8 am, was examined as PW1. He deposed that on the intervening night of 18/19.07.2003 at about 2:30 am, he received one complaint given to him by SHO, for registration of an FIR under Section 409 of the IPC. Accordingly, he recorded FIR no. 300/2003 (Ex.PW1/A) and also made an endorsement on the rukka (Ex.PW1/B).

10. Ct Sheesh Pal, who was posted as Munshi, Malkhana at PS Kirti Nagar, was examined as PW2. He deposed that on 02.07.2003