Delhi District Court
State vs . Brijesh Kumar on 3 November, 2020
STATE VS. BRIJESH KUMAR
IN THE COURT OF MM-05, EAST, KARKARDOOMA COURTS, DELHI
Presided by : Ms. Aakanksha Vyas
Cr. Case no.11533/2016
STATE Vs. BRIJESH KUMAR
FIR No. 643/2007
PS Krishna Nagar
JUDGMENT:
a) Case No. : 11533/2016
b) Complainant : Raghubir Singh
c) Name, parentage and : Brijesh Kumar S/o Sh. Chander
address of the accused Pal Singh R/o H.No. US-304,
Mandawali Fazalpur, Delhi
d) Offence charged : U/s 406 IPC
e) Plea of accused : Not guilty
f) Date on which judgment was :
reserved 16.10.2020
g) Final order : Acquittal
h) Date of decision : 03.11.2020
FIR NO: 643/2007 Page 1 of 8
STATE VS. BRIJESH KUMAR
FINAL ORDER
1. Vide this order, I shall dispose off the present case in which the accused herein namely Brijesh Kumar has faced trial for the commission of offence u/s 406 of the Indian Penal Code (hereinafter referred to as the IPC). The factual background of this matter is as follows. As per the chargesheet, on 30.12.2007, the complainant namely Raghubir Singh came to the PS Krishna Nagar and gave a complaint to the following effect. The complainant stated that on 24.12.2007, his driver i.e. the accused herein took his Qualis car bearing No. DL 5CB 4414 at 12PM for dropping the complainant's friend namely Dilip Singh to Saharanpur. The complainant further stated that on 25.12.2007, Dilip Singh informed him telephonically that the accused and the qualis car were missing. The complainant has further stated that he told Dilip Singh that the accused might have gone nearby to eat or get the car repaired. The complainant alleged that when the accused did not return for a considerable period of time, Dilip Singh came back to Delhi on 26.12.2007 with his family and told the complainant that he had come back by train. The complainant further alleged that he tried to contact the accused and searched for him but to no avail and therefore he suspected that the accused had taken away the said Qualis car with malafide intention.
2. On the basis of the above complaint, FIR no. 643/2007 was lodged in PS Krishna Nagar. During investigation, the accused was arrested on 01.01.2008 and on 05.01.2008, the Qualis Car of the FIR NO: 643/2007 Page 2 of 8 STATE VS. BRIJESH KUMAR complainant is stated to have been recovered at the instance of the accused from Gandhi Stadium Bareilly. Upon completion of investigation, chargesheet was filed against the accused herein u/s 406 IPC. The accused was summoned and charged for the commission of the above mentioned offence to which he pleaded not guilty and claimed trial.
3. To prove its case, the prosecution examined six witnesses. The complainant Raghubir Singh was examined as PW1 and he proved his complaint Ex. PW1/A. PW4 is Sh. Dilip. PW6 SI Shiv Murti is the Investigating Officer of the present case and he proved the complaint recorded by him i.e. Ex. PW1/A, Rukka Ex. PW6/A, Site Plan Ex. PW6/B, arrest and personal search memo of the accused i.e. Ex. PW1/B & C, Disclosure statements of the accused i.e. Ex. PW1/D and Ex. PW6/B and Seizure memo of the Qualis car i.e. Ex. PW3/A, all the above mentioned documents having been prepared by him. PW3 is Ct. Sudhir who assisted the IO during investigation and he is witness to the arrest of the accused as well as the seizure of the Qualis Car. PW Makhan Singh is the photographer who clicked the photographs of the Qualis Car at the PS i.e. Ex. PW1/E and F. PW2 ASI Uttam Chand proved the present FIR I.e Ex. PW2/A (OSR).
4. Thereafter, prosecution evidence was closed. The testimony of the witnesses shall be discussed during the appreciation of evidence. Statement of the accused was recorded U/s 313 Cr.P.C in which he denied the case of the prosecution. Further, accused pleaded that he had been falsely implicated. The accused further pleaded that he had left the service FIR NO: 643/2007 Page 3 of 8 STATE VS. BRIJESH KUMAR of PW1/complainant prior to 24.12.2007, at the time of Diwali and had gone to his village in U.P. However, PW1 had to pay the accused some money on account of his pending salary and on this point, hot talk took place between PW1 and the accused and in the meantime, Qualis Car of PW1 got stolen and the complainant falsely implicated the accused for the same. The accused also pleaded that he did not know PW4 and he never took PW4 to Saharanpur. Further, he was arrested from his house at mandawali as he never attempted to escape the police, being innocent. The accused also pleaded that he was never taken to Bareilly by the Police and instead, he was made to sign certain documents in the PS itself and the case property i.e the Qualis Car was planted upon him by PW1 in connivance with the police.
However no defence witness was examined by the accused.
5. Thereafter final submissions were heard. The Ld. APP for the state had contended that the case of the prosecution stood proved beyond all reasonable doubt in light of the testimonies of the PWs and the contradictions in their testimonies if any, were minor in nature. Per contra, the Ld. defence counsel had contended that the testimonies of the PWs were riddled with major contradictions and could not be relied upon to convict the accused.
6. The accused has been charged for the commission of offence u/s 406 IPC. Section 406 IPC prescribes the punishment for the offence of criminal breach of trust which is defined U/s 405 IPC. Therefore, it is apposite to look at Section 405 IPC which provides as follows:
FIR NO: 643/2007 Page 4 of 8STATE VS. BRIJESH KUMAR
405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
7. I have carefully perused the record, in particular the testimonies of the witnesses and I find that there are various facts which have come on record which cast a doubt on the story of the prosecution. I shall commence with the testimony of the complainant/PW1. The complainant has deposed that the accused was his employee/driver and the accused took the qualis car bearing no. DL5CB4414 on 24/12/2007 (amounting to entrustment of the accused with the car) for dropping the complainant's friend/PW4 to Saharanpur and on 25/12/2007, PW4 informed the complainant that the accused had gone away with the said car and ultimately PW4 came back by train on 26/12/07. The complainant has also deposed that thereafter he had tried to contact the accused but could not contact him and therefore the accused had dishonestly taken away his vehicle. The important fact which emerges here is that even though the complainant became aware on 25/12/07 and again on 26/12/07 itself that his qualis car as well as the driver/accused were missing, no complaint either for any suspected offence committed by the accused or 'missing' simpliciter was lodged by him regarding the same and the complaint Ex.
FIR NO: 643/2007 Page 5 of 8STATE VS. BRIJESH KUMAR PW1/A was lodged only on 31/12/2007. In other words, there is a substantial delay in the lodging of the complaint. Now during cross examination, the complainant deposed that he did not lodge any report from 26/12/2007 to 30/12/2007 because he had contacted the father of the accused in Vishwas Nagar but the complainant was unable to tell where this meeting took place and as per his own testimony it is also not the case that he met the father of the accused at his home. Therefore the explanation furnished by the complainant for the delay in the lodging of the complaint is specious and casts a strong doubt upon his allegation that the said car was entrusted to the accused who misappropriated the same or converted the same to his own use.
8. I now come to the testimony of PW4. In his testimony, PW4 has given a version different from that of the complainant. PW4 has deposed that he hired the qualis car in question (identified by him from the photographs Ex. PW1/E and F) from one Ritik travels to go to Saharanpur and on the same day after reaching Saharanpur, the accused (identified by PW4) had fled with the car and on the next day, PW4 hired another car and came back to Delhi. However PW4 has also deposed that thereafter, the owner as well as the travel agent came to his house and requested him to go to Saharanpur and alongwith them, he reached PS Saharanpur but the officials of PS Saharanpur told them to get the case registered in Delhi and so they came back to Delhi and the owner of Ritik travels assured him that whenever the car is traced, his belongings amounting to 30000-35000/- will be returned to him.
FIR NO: 643/2007 Page 6 of 8STATE VS. BRIJESH KUMAR It is evident from the above that the testimony of PW4 is at odds from the testimony of PW1. To begin with, as per PW4, he hired the Qualis car in question from one Ritik travels and there is nothing on record to show that the complainant is the owner of Ritik travels. In fact, the RC of the qualis car in question reflecting that the complainant is the owner thereof is also not on record. It is also pertinent to note that contrary to the testimony of the complainant, PW4 has categorically denied during cross examination that he knew the complainant or that the complainant was the owner of Ritik Travels. Importantly as per PW4, he had gone to Saharanpur alongwith the travel agent and the owner of the car to lodge a complaint regarding the car but no such fact is deposed by the complainant himself.
In other words there is material discrepancy between the testimony of the complainant and testimony of PW4 and coupled with the unexplained delay in the lodging of the complaint by the complainant, a reasonable doubt arises as to the veracity of the allegations of the complainant. Furthermore, although the complainant has deposed that the Qualis Car in question belonged to him, no proof of ownership of the same was furnished by the prosecution during the trial. It is a cardinal principle of criminal jurisprudence that prosecution is to prove the guilt of the accused beyond the possibility of any reasonable doubt. In Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103, it has been held that:
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the FIR NO: 643/2007 Page 7 of 8 STATE VS. BRIJESH KUMAR accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits.
9. Therefore keeping in view the delay in the filing of the complaint Ex.PW1/A as well as the material discrepancies in the version of PW1 and PW4, I am of the opinion that a reasonable doubt is cast upon the case of the prosecution. Accordingly the accused stands acquitted of the offence charged.
Digitally signed by Announced through Video Conferencing AAKANKSHA VYAS AAKANKSHA Location: Karkardooma VYAS Courts, Delhi Date: 2020.11.03 15:12:43 +0530 this day i.e. 03.11.2020 (AAKANKSHA VYAS) MM-5, East, KKD Courts, Delhi 03.11.2020 FIR NO: 643/2007 Page 8 of 8