The duty of the trial court to put each material circumstance to the accused and the requirement to seek an explanation from the accused regarding incriminating circumstances.

JUDGMENT :

1. The present appeal is directed against judgment dated 28.01.2005 passed by the learned 1st Additional Sessions Judge, Jammu (Special Judge Anti Corruption, Rajouri, Poonch and Doda District) (‘the trial Court’) whereby the appellant has been convicted of offences under Sections 467/409 RPC and Section 5(2) of J&K P.C Act and sentenced to undergone simple imprisonment for a period of four years and to pay a fine of Rs. 5000/- in proof of offence under Section 467 RPC, simple imprisonment of four years and to pay a fine of Rs. 5000/- in proof of offence under Section 409 RPC and simple imprisonment for a period of three years and to pay a fine of Rs.5000 in proof of offence under Section 5(2) of J&K P.C Act.

2. It appears that an FIR No. 21/1987 for commission of offences under Sections 409/467/120-B RPC and Section 5(2) of J&K P.C. Act was registered with Police Station, Vigilance Organization, Jammu on the basis of a letter dated 10.01.1987 issued by the Directorate of Food and Supplies, Jammu (EXPW-NL) alleging therein that audit of Food and Supplies store, Ramban has revealed certain irregularities relating to misappropriation of food grains/sugar. It was alleged that the appellant (accused No.1) who was working as a Store Keeper, Ramban Food Store, took over the charge of stock of 2378 quintals of wheat from his predecessor on 07.30.1985 and he in connivance with other accused misappropriated the food grains/sugar by showing fictitious issue of food grains/sugar. Thus, an amount of Rs.183897.80 has been misappropriated by the appellant in connivance with other accused by manipulation of the record. It was alleged that 695.60 quintals of wheat, 6.13 quintals of rice (PR106), 90.95 quintals of Atta and 24.12 quintals of sugar were shown to have been issued to various Sales Depots, though the same were not actually issued. Thus, misappropriation amounting to Rs.1,83,897.80 being the cost of aforesaid food grains/sugar was committed by the appellant in conspiracy with the carriage contractors/co-accused. The auditors also found that the appellant had not made available the accounts of Rattna rice weighing 4597.80 quintals, cost of which, was worked out to Rs.14,39,685 and he had also not accounted for the empty bags.

3. During investigation of the case, accounts allegedly suppressed by the appellant were later discovered and ultimately, it was concluded that the appellant in connivance with other accused had misappropriated only an amount of Rs.3,22,119.36 being the cost of 1020.40 quintals of wheat, 44.15 quintals of sugar, 75quintals of rice, 109.33 quintals of flour, 89.24 quintals of Rattna rice and 1173 empty bags.

4. Accordingly, the charge-sheet alleging commission of offences under sections 409/467/120-B RPC and 5(2) of P.C.Act was filed before the trial Court. On 28.06.1993, accused Mohan Lal and Sudershan Chakker were discharged by the learned trial Court, whereas the other accused including the appellant were charged for offences under sections 409/467/120-B RPC and Section 5(2) P.C Act. It seems that the said order came to be challenged by the State and ultimately, the Supreme Court set aside the said order to the extent of accused Mohan Lal and Sudershan Chakker and the case was remanded to the trial Court for considering the matter afresh. Thereafter, accused Mohan Lal and Sudershan Chakker were also charged for the aforesaid offences. The accused pleaded not guilty to the charges, as such, the prosecution was directed to lead evidence in support of its case.

5. In order to prove its case, the prosecution examined PWs Nand Lal Bakshi, Soudagar Mal, Harbans Lal, Kalyan Singh, Mangat Ram, Mohd Ashraf, Jai Kishan, Jagdish Kumar, Prem Pal Gupta, Shahbaz Khan, Avtar Singh, Altaf Ahmed, Annayatullah Khan and Mansoor Ali.

6. After completion of the prosecution evidence, the statements of the accused including the statement of appellant under Section 342 of J&K CrPC were recorded and the incriminating eviden