The State of Telangana, rep. by the public prosecutor, High Court at Hyderabad V. Kanwardeep Ghey Winky, S/o. Late Col. Harbans Singh

CRLA/1279/2018

AI Insights

The case revolves around the allegations made by Smt. Jessilina Ghai against her husband, Kanwardeep Ghey Winky, and his family, accusing them of not returning her Stridhan and demanding dowry. Initially, the trial court convicted the accused under Section 406 IPC for not returning the entrusted properties but acquitted them on appeal. The State of Telangana challenged this acquittal in the High Court, which also upheld the acquittal, citing lack of sufficient evidence to prove that the accused misappropriated or converted the property for their own use.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 692756 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 08-12-2021
• Assessment Year: misc
• Laws Referred To: Criminal Procedure Code (Cr.P.C), Indian Penal Code (IPC), Dowry Prohibition Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: KANWARDEEP WINKY
• Assessee Lawyers: SRI PUBLIC PROSECUTOR
• Keywords: Acquittal; Criminal Appeal; Criminal breach of trust; Entrustment of Property; Dowry Demand; Marital Dispute
• Section: 378(3); 378(1); 378(1); 406; 151 CPC; 498-A

Judgement Text

"[ 3230l IN THE HIGH GOURT FOR THE STATE OF TELANGANA AT HYDERABAD WEDNESDAY,THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND TWENW ONE PRESENT THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI CR!MI NAL APPEA L NO: 1279 OF 2018 Criminal Appeal Under Section 378(3) & (1) of Cr.p.C against the Judgment Dated 25-09-2017 in Crl. A.No.95 of 2009, on the file of ttre Court of the Metropolitan Sessions Judge, Hyderabad. Between: THE STATE OF TELANGANA, rep. by the pubtic prosecutor, High Court at Hyderabad. ...ApeU_ltf AND KANWARDEEP GHE!@ WINKY, S/o. Late Cot. Harbans Singh, age 49 years, Occ..Chief engineer, Merchant Navy, TK.Shipping Canda Limiled, F/o.t t6, Dolphin Apartments, Pilot Bunder Road, Colaba, Mumbai (A-1) Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pbased to condone the delay of 99 days in presenting the criminal appeal agairrct Crl.A.No. 95 of 2009 on the file of the Metropolitan Sessions Judge, Hyderabad. ...RESPODENT/ACCUSED lA NOI! OF 2018 lA NO: 2 OF 2018 Petition under Section 151 CPC praying that in the circurnstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant leave to file criminal appeal against the judgment of acquittal, dated 25-09-2017 passed in Crl.A.No. 95 of 20OO on the file of the Metropolitan Sessions Judge, Hyderabad. Counsel for the Appellant :SRl. PUBLIC PROSECUTOR Gounsel for the Respondent :... The Court made the following: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRJMINAL APPEAL No. 1279 OF 2018 ORDER: . The present Appeal is filed by the State aggrieved by the judgment dated 25.09.2072 on the file of the Metropolitan Sessions Judge, Hyderabad whereby Criminal Appeal No.95 of 2009 filed by Accused No.1 was allowed setting aside the judgment dated 26.02 .2O09 on the file of the XIII Additional Chief Metropolitan Magistrate (Mahila Court) at Hyderabad under which the accused was convicted for the offence under Section 406 IpC. and sentenced to suffer simple imprisonment for a period of six months and to pay a hne of Rs.S,O0O/- in default of payment of hne to suffer simple imprisonment for one month. 2. Case of the prosecution is between Smt. Jessilina Ghai (p.W. l) and that the marriage Accused No.l was solemnised on 18.02.1990 at Bombay, at that time, her parents gifted several movable properties. It is stated that after the marriage, P.W.t lived with the accused at Bombay and sometime thereafter, due to misunderstanding, Accused No.l left her at Pitsburg, USA to spend some time with her paternal uncle. After her return on 18.lO. 1995, accused neither allowed her into the house nor returned her property. In November, 1995, p.W. I and t 2 her parents requested for return of properties' but in vain' Subsequently, she gave a complaint which was registered as Crime No. 24 of 1997 for the offences under Sections 498-A and 406 IPC' by the CID Police. 3. The case was taken on file for the offences under Section 498-A and 406 IPC. and Sections 4 and 6 of the Dowry Prohibition Act. On behalf of prosecution, P'Ws' 1 to 4 were examined and Exs.Pl to P10 were marked On behalf of the accused, D.W.1 was examined and Exs' Dl to D3 were marked' 4. The Court below had acquitted Accused Nos' I and 2 for the offence under Section 498-A IPC' and Sections 4 and 6 of the Dowry Prohibition Act, however, convicted them for the offence under Section 406 IPC. and sentenced Accused No l to suffer simple imprisonment for six months and to pay a hne of Rs.5,0OO/- and Accused No.2 was directed to pay fine of Rs.5,0OO/-, in default to suffer simple imprisonment for a period of one month to both of ttrem. Accused No'2 did not prefer any Appeal. 5. The trial Court, while acquitting the accused for the charge under Section 498-A Irc. observed that the evidence of P.W. 1 in this regard is that at ttre time of hxing the marriage' A2 told her father on phone that the wedding should be celebrated J and all the things should be given according to their status and accordingly, her father gave dowry, gold, silver and diamonds worth Rs.4.5 lakhs and that the same was entrusted to A2 when P.W. I was proceeding to the matrimonial house. The evidence of P.W.2 in this regard is that A2 demanded for dowry prior to the marriage and accordingly, they gave gold and diamond jewellery and silver worth Rs.4.5 lakhs as per the status of the accused and it was entrusted to A2 after the marriage. The evidence of P.W.3 is that before the marriage there was demand by Al and A2 and accordingly, their demand was fulfilled by the parents of PWI by giving gold, silver and diamond jewellery. In Ex.Pl report given by P.W.l to police, it is recited therein in this regard that before the wedding A'2 conveyed to the parents of P.W.l that they must give sufficient dowry to uphold the position of the accused in the society and accordingly, her parents spent huge amounts in giving P.W. 1 gold and diamond jewellery, clothes and various other items in the wedding for the use of P.W. 1 and that all those items are Stridhan of P.W.1 and were e ntrusted to the accused by P.W. I and for the use of P.W. 1. P.W. 1 and P.W.2 have further deposed that an amount of Rs.50,0OO/- in cash was given in a suit case and an amount of Rs.2S,OOO/- was placed in the fixed deposit in the name of P.W. I at the time of marriage. Concerning this amount, except the oral evidence of P-W. I and P.W.2, there is no other evidence to 4 support their evidence. Even P W.3 who is the brother of P'W'2 and the maternal uncle of P.W.1 did not state about the payment of said cash. Even Ex.P1 does not contain about payment of any cash as stated by P.W. 1 and P.W.2. Even in the list attached to Ex.Pl, among all the items shown as Stridhana of P'W'1, there is no mention about this cash. The report under Ex'Pl ran into nine pages and as many as 106 items are shown in the said list' In the absence of a specilrc and clear mention about the said cash in Ex.Pl as well as in the said list, it is not safe and desirable to rely upon the evidence of P.W. I and P'W'2 in this regard' more particularly, when there is no corroboration to their evidence from P.W.3 who is their close relative, no reliance can be placed on the evidence of P.W. 1 and P.W.2 in this regard' So far as the alleged demand of dowry by the accused is concerned, P'W'3 has very categorically admitted that he did not participate in the negotiations that taken place before the marriage between P'W' 1 and A1. So, the evidence of P.W.3 in this regard is only a hearsay' It is not the case of prosecution and the evidence of P'W 1 and P.W.2 that the atleged gold, diamond and silver jewellery was given to the accused either for their benefrt or for their use' The clear evidence of P.W.l and P.W.2 supported by the contents of Ex'Pl very clearly shows that the alleged jewellery, gold, diamond and silver was given to P.W' I for her sake and for her use' It is more clear from the evidence of p.W. t and p.W.2, wherein they deposed that the said dowry was entrusted to the accused after the marriage. So, the said clowry was given to the accused only in the form of entmstment anrl certainly, not for their use or benefit. It cannot be termed as a demand for dowry'. The parents of p.W. I glvrnB some jewellery according to the status of the accused to P.W. 1 in the marriage for the use and benelit of p.W. I calnot be taken as giving dowry. According to the case of prosecution, the accused demanded thc parents of p.W. I for purchase of a car and in that regard, the father of p.w. 1 gave an amount of Rs.1 lakh and the sister of p.W. I gave 3000 US dollars to ^A1 and he purchased a Maruti car in the name of p.W. 1 not with the money given by the father and sister of p.W. I but on hire purchase. There is no clinching evidence on both sides to prove with whose money the said car was purchased. Because it was purchased in the name of p.W. l, whether with the money given by the father and sister of p.W. 1 or with the money of Al, it must be treated that it is a gift given to p.w. I by any of them. so, it cannot be considered that there was demand by the accused for purchase of a car and that the car was purchased only with the money of the father and sister of p.W. l. Moreover, the case of the prosecution and the evidence of p.Ws. I to 3 very clearly shows that p.W.l never lived with A I subsequent to hcr returning from Bombay to -) 6 Secunderabad in october 1995' So there was no possibility for P.W. I either to conceive pregnancy or for any miscarriage subsequent to October, 1995 So' it is very clear that the evidence of P.W. 1 that she had three miscarriages after the miscarriage on the ship in June 1995 cannot be believed The manner in which P.W. 1 and P-W.3 gave evidence very clearly shows that they clearly intend to help P.W.I in the case against the accused' The only evidence for the alleged harassment is of P'W- 1' There is no corroboration to her evidence from any independent witnesses' Even though, it is not necessary to Ot:u the alleged harassment by examining any of the independent witnesses' but in the facts and circumstances of the case, I feel that it is not safe and desirable to rely upon the evidence of P'Ws'l to 3 which is very muchinterestedinthecaseofprosecutionagainsttheaccused'In order to find the accused guilty of the offence under Section 498-A IPC., the burden lies on the prosecution.to prove that there was guilt on the part of the accused towards P W I as explained in Section 498-A IPC' The proviso under Section 498-A IPC' Explains the term 'cruelty' in two clauses which are as follows: (a) any witfut conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave lnJury or danger to life, limb or health (whether mental or physical) ol the woman; or 1 (b) harassment of the womzrn wl.rere such harassment is with a view to coerclng her or any pcrson related to her to meet any unlawful demand for an,v properry or valuable security or is on account of failure by her or any person related to her to meet such demand.\" In the present case, there is no sufhcient evidence to prove that there was such a cruelty on the part of the accused towards P.W. 1 as is punishable under Section 49g-A IpC. The evidence on record, does not inspire any confidence to believe that the accused treated P.W. I with so much of cruelty as explained under Section 498-A IPC. for convicting thcm for the said offence. The evidence on record is neither clinching nor cogent to prove the charge under Section 499-,4 IpC. and so, under the facts and circumstances of the case, I feel that a reasonable benefit of doubt can be extended to the accused in respect of the charge under Section 498-A IpC. The evidence on record is not sufficient to prove the guilt of the accused for the charge under Section 498-A IPC. beyond reasonable doubt according to law. Accordingly, the trial Court acquitted the accused for the offences under Section 498-A IpC. and under the provisions of the Dowry ?rohibition Act. 6. When it comes to the charge under Section 406 IPC., the trial Court observed that the case of prosecution is that all the belongings of p.W. I including gold, diamond and 8 silver jewetlery were entrusted to the accused and that on 18.10.1995 when she requested them to return her belongings, they refused and even thereafter at the request made by herself, P.W.2 and P.W.3, accused did not return her articles and that on 11.O4.1997 P.W.4 had seized 95 items of articles including Kinetic Honda and Maruti Car from the house of accused' The evidence of P.Ws.1 to 3 is consistent with regard to entrustment of those articles to the accused and also with regard to refusal by accused to return the same to P.W. 1. The evidence of P W'4 very clearly shows that he seized the articles marked as M Os l to 95 from the house of accused ot 11.O4.1997 in the presence of mediators under a cover of panchnama, which is Ex P l ' P.W.1 also very categorically deposed that P.W-4 seized M'Os 1 to M.Os.95 from the house of accused on 11.O4 i997 under a panchnama in the presence of mediators. The contents of Ex.PlO very clearly supPort the evidencb of P.Ws' 1 to 4 in this regard. Practically, there is no cross-examination to the evidence of P.W. I . Admittedly, all those articles which are marked as M.Os. I to M.Os. 95 were handed over to P'W- 1 by police i.e. P.W.4 soon after the seizure on 11 O4' 1997' In para 36 in page 9 of Ex.P8, A1 herein hirnself made a clear mention that on or about 11.04.1997 car, scooter and jewellery, clothes, cosmetics, shoes, perfumes etc. were seized by police ofhcers, l whom P.W. I herein brought with her to Mumbai and that the said property was delivered to p.W. I by police. This admission of A I supports the evidence of p.W. I and p.W.4 about the seizure of those articles on 11.O4. 1997 trom the house of accused. In spite of those articles were handed over to p.W. I by police soon after the seizure on 11.O4.1997, the accused did not make any claim for those articles. If really, those articles belong to the accused certainly they would have made a claim for those articles. The evidence on record very clearly shows that those articles belong to P.W. 1. When those articles were in the custody of accused, which belongs to p.W. 1, it is the duty of the accused to return them to p.W. 1 as and when she requested for return of the same. The evidence of p.Ws. 1 to p.W.3 as I have already stated, very clearly proves that the accused have refused to return those articles. The articies belonging to p.W. I were kept in the house of accused itself proves that they were entrusted to the accused. So, refusal on the part of accused to hand over or return those articles to p.W. l, when a request was specifically made for that purpose by p.W. I clearly amounts to the commission of criminal breach of trust on the part of the accused. Accordingly, the Court had found them guilty for the offence under Section 406 and sentenced to undergo simple ) -- ----..*-.:--::.= - =.=:: -' -l { l0 imprisonment for six months and a fine of Rs 5'000/-' Aggrieved thereby only, accused No' 1 preferred the Appeal' 7 . The Appellate Court while acquitting the accused under Section 406 IPC had observed that to prove the offence under Section 406 IPC ' t[-re prosecution has to flrst establish that the de facto complainant is the owner of the property and that the said property was entrusted to the accused and they misappropriated it or converted it to their own use with a dishonest intention. The details of the gold jewellery or silver articles or diamond .1ewellery given at the time of marriage to P.W.l by her parents was not stated by her in her complaint Ex.Pl or in her evidence' P'W l stated that some of the jewellery was purchased at Bombay' but no receipts were frled by her in proof of the same Her mother' P W'2 stated that it was ancestral jewellery, but the details of the said jewellery were not even given by her' No income tax returns showing the details of jewellery held by the family were filed by P Ws l and 2' No evidence was adduced by the prosecution to show that the fatherofP.W.1gaveRs.75,000/.,Rs.5o,o0o/-incashtoA2and Rs.25,OOO/- in her name as hxed deposit at the time of marriage. If the amount was kept in the fixed deposit there would be documentary evidence available When documentary evidence was available to prove a fact' oral evidence in the said t'r ) regard pales into insignificance. p_W. I filed a receipt for purchase of Kinetic Honda marked as Ex.p2 dated 06.02.1992 to prove that it was purchased in her name at Secunderabad. To provs that Maruti gO0 cc petrol car was standing in her name, she filed the R.C. of the vehicle marked as Ex.p3. The R.C. would show that it was purchased on hire purchase agreement from 20rh Century Finance. No documentary evidence was filed by the Investigating Officer or adduced by the complainant to show that she was paying the said instalments. No evidence was adduced to show that her father gave Rs_l lakh to A1 for the purchase of the car and her sister gave 3OO0 U.S. dollars. The de facto complainant and her mother admitted that the car was purchased on her purchase agreement by Al and they stated that the said money given by her father and sister was used by Al for purchase of plots at pune. But no documentary evidence was filed in support of their contention. But the said admissions made by p.W. I and p.W.2 would prove that A 1 purchased the car in the name of p. W. I on hire purchase on 13.O7. 1994 anil paid rnstallments for some period. As per p.W.2 as Al refused to pay the car instalments they started paying them frorn January 1996 to November 1996 to an amount of Rs.g2,OOO/_. But no documentary proof was filed in support of the said payment of instarments by them also. llr L / I II Thus except the oral evidence of P W 1 and P W-2 there ts no corroborative documentary cvidence in support of their contention that the properties seized under M'O 1 to M'O'95 belonged to P.W.l The trial Court retied on the fait that as A1 aod A2 had not claimed any of the articles as that of theirs' they can be presumed as that of P W' 1' The burden lics upon the prosecution to prove the facts beyond reasonable doubt' Simply because the accused had not claimed the same' they cannot be consideredaSthatofthedefacto-complainant.Manyofthese articles can also be gifts given to her by her husband' in Iaws and relatives and friends on the in laws side or purchased by her husband during foreign tours He might not have claimed the same.not to carry forward the titigation' The car could also have been purchased by Al in the name of P'W'l' The R C' standing in her name is alone not sufltcient to claim that the car belonged to her' Her failure to file docum€ntary evidence in support of the amounts alleged to have been given by her father and sister for the purchase of the same' she being a non- earning member, the car purchased on hire purchase and the admission of P.W'2 that the instalments were paid by A1 till December 1995 shows that hollowness of her the accused and his claim. The non-claiming . With regard burden never shifts on cannot be considered as proved by the prosecutron , J') t to entrustment of property by p.W. I to Al and A2, the evidence of P.Ws.l and 2 is not consistent. p.W. I stated that all the jewellery and silver were entrusted to her mother-in_law after proceeding to her matrimonial home and that they were in her custody from the beginning 42 used to rock them in her almyrah and give them to her at the time of functions. p.W.2 stated that all the gold jewellery and costly items of p.W. I were in the custody of A2 and in the month of June 2OO5 p.W. I had entrusted the car key, scooter key and other varuabres to A2, while she was about to join her husband in the ship. Thus, it would show that the above articles were in the custody of p.W. I till June 1995 and were entruste d to A2 while she left the house for joining her husband in the ship. Thus, there were inconsistent versions as to when entrustment was grven. With regard to the aspect of demand to return the property also, except the oral evidence of p.Ws.l to 3 no documentary evidence was filed by the prosecution to believe the same. p.W.3 being an advocate in profession practicing in Chandigarh had not issued any Iegal notice to the accused demanding return of property entrusted by p.W. I to A1 and A2. The prosecution had not adduced any evidence to show that they made any demand for return of the property entrusted by p.w. l to Ar and 42 in their compriant before Chandigarh police which was transferred l I l I lt --.t ) t l4 to Bombay. No details of the property were give n by P'W' 1 to the police before searching the house of Al and A2 on ll.O4.lgg7. without giving any such details to the police prior to conducting search, the search made and the seizure of the property conducted by police is considered not legal' The panch witnesses for the said panchnama were also not examined by the police. Thus, except the evidence of P W 4 the lnspector of Police, the search was not proved by any independent evidence to believe that M.Os.1 to MO.95 were recovered from the house of A1 and A2. Tlne tria-l Court relied upon the petitioner filed by the accused before the Famity Court at Bandra' Bombay for divorce to believe the seizure. It was mentioned in para 36 of Ex.P8 that on or about 11th April, 1997 the car' scooter' jewellery, clothes, cosmetics, shoes, perfumes etc ' were seized by the police oflicers whom the respondent brought with her to Bombay after having filed a complaint in Hyderabad and the said property was delivered to the respond€nt by the police' The prosecution instead of proving seizure by examining the panch witnesses relied upon the averments madc by A I in his petition fordivorcefortheseizureofthearticles.Thus,thetrialCourt relied on the weaknesses of the defence instead of the strengths of prosecution case to believe the facts The retention of those aricles in the house of Al and A2 cannot be considered as a rt) Y I I I proof of dishonest intention as the marital bond between p.W. I and Ai was not severed by that date. As per the admission of P.W.2 in her cross-examination the marriage between p.W. I and Al ended in divorce on OZ.l2.2OO4. The trial Court made an observation in the judgment that Al had not deserted p.W. I and it u,as P.W. I who deserted 41 and left his comp.rny. When the marital tie was existing between the parties and when p. W. 1 herself left the company of AI and when there was proof of demand made by the complainant to the accused to return her articles, the articles being in the custody of Al and A2 itself would not prove Section 406 IpC. accused misappropriated converted them to their them. The articles diamond and silver mrsappropriated them, the dishonest intention as requrred under The prosecution also failed to prove that the any of the articles of own use or used them or P.W. 1 or disposed are gold marked under M.O.1 to M.O.9S ornaments and personalized items like dresses, shoes, purses, cosmetics, make up kit etc there was no evidence that the said articles were used by the accused, converted them or disposed by them. Hence, the articles of p.W. I lying in her marital home when the marital bond between them was not severed would not constitute an offence under Section 406 IpC as the ingredients of the same wcre not established by the prosecution. The prosecution failed to prove at the first instance that all the said articles marked under M.Os.1 to 95 belonged to P'W' I and that they were entrusted to A1 and A2 and the same were misappropriated or converted to their own use by Al and he used them or disposed them with a dishonest intention in violation of any legal contract express or implied or any direction of law describing the mode in which the trust was to be discharged. The trial Court believing the evidence of P Ws l to 4 for convicting A1 for the offence under Section 4O6 IPC' is considered improper. Accordingly, acquitted the accused' The State is Lrefore this Court assailing the said judgment of acquittal. 8. Learned Public Prosecutor submits that judgment is contrary to law, weight of evidence and probabilities of the case. It is submitted that beyond reasonable doubt the prosecution has proved the guilt of the accused under Section 406 IPC. The Court below went wrong in coming to the conclusion that there is no documentary evidence to prove the demand of return of property is not correct as the property is entrusted to the mother-in-law on faith after entering the matrimonial house. The Court below ought to have appreciated the evidence adduced by the prosecution and ought not to have acquitted the accused. I l 7r/ 9. This Court having heard the learned public Prosecutor, peruscd the entire material on record. 10 The present Appeal 1S preferred by the State aggrieved by the judgment whereby the accused was acquitted for the offence under gs61i6n 406 IpC. An order of acquittal iannot be disturbed in an Appeal under Section 37g Cr.p.C. unless it is perverse or unreasonable. The Court should find strong, compelling reasons to interfere with an order of acquittal. This Court cannot interfere with the order of acquittal just because a different view is possible. When the Court still wants to interfere it should assign plausible reason. When two views are possibre one pointing at the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be applied. I 1 . Coming to the facts of the case, the accused was acquitted for the offence under Section 406 IpC. The Court had come to the conclusion that there is no positive evidence placed before the Court to show that there is entrustment of propert5z. It is appropriate to have a look at Section 406 IpC. which reads as under: I I ,,;, 4od.pu,,ishment lor criminal breach of trust: _ wnoever commrts criminal hreach of trust shall be puiished with imprisonmenr of eirher description for a term *t i\"i--\"v l*t.na ro Lhree years, or with fine, or with both... I l I i I j I I I Section 4O5 IPC. defines 'criminal breach of trust' which reads thus: \" 4li.Criminal breach of tt'ust: - Whoever being in any manner entrusted with property, or with any dominion over nroDertv. dishonestty misappropriates or converts to his own use iiri \".6r.\"u. or dishonestly uses or disposes of that property tn ;';;;;;;;;;' aii..tio.' oi law prescribins the mode in which such trust is t; be discharged, or of any legal contract' express or i-rilJ. *n-n he has madi touching the discharge of such. tmst' \". \"*tffirff\"'\"\"ff..\" u.rv ottt.t person so to do, commits \"criminal breach oi trust\". 12. To attract the offence under Sections 4O5 and 4O6 IPC., the prosecution has to prove beyond reasonable doubt that a property has been entrusted to the accused' who dishonestly misappropriated the same' The first ingredient to be satisfied is entrustment of property. With regard to the gold jewellery' silver articles and diamond jewellery entrusted by the complainarrt to the accused, there is no mention in Ex'Pl i'e' the complainant' Nobills,incometaxreceiptsaboutpurchaseofpropertyare placed before the Court' Further' there was no evidence wilh regard to the fixed deposit and even with regard to purchase of car also no evidence is adduced' The trial Court convicted the accused solely relying on the fact that as A1 and A2 had not claimed any of the articles as that of theirs' they can be presumed as that of P'W' 1' This hnding of the trial Court is contrary to law. In the criminal case' the burden lies on the prosecution to prove the guilt of the accused beyond reasonable l {' I9 doubt by adducing the evidence. The appellate Court had rightly acquitted the accused as the prosecution failed to prove the entrustment of property to the accused. When once they failed to prove the entrustment of property to the accused, the ingredients of Section 406 IPC. are not attracted. This Court is not able to appreciate the contention of the learned Public Prosecutor that out of faith, the articles are given to the mother- in-law and it cannot be proved. On assumptions and presumptions, accused cannot be convicted and it is the duty of the prosecution to prove the guilt beyond reasonable doubt. The Court below rightly acquitted the accused for the offence under Section 406 IPC. and this Court linds no reasons to interfere with the same. 13 The Crirninal Appeal is accordingly, dismissed t4 Consequently, the miscellaneous Applications, if any shall stand closed Sd/- K. SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER 1. The Metropolitan Sessions Judge, Hyderabad. 2. fwo CCs to Public Prosecutor, High Court for the State of Telangana at Hyderabad. (OUT) 3. Tvro CD Copies I I To, DL I 4 $x HIGH COURT DATEDiO8|12l202l ORDER CRLA.No.1279 ot 2018 DISMISSING THE CRIMINAL APPEAL 1 e STAI€ ( e J o 3 [ 0Et ?[23 7 c) 5 .rt t * DESPAl -a rJrs t Ju' "