Delhi District Court
State vs Rahis on 15 December, 2023
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE-08, SOUTH WEST DISTRICT, NEW DELHI
STATE VS. RAHIS & ORS.
FIR NO: 1327/2014
P. S UTTAM NAGAR
U/s 406/182/34 IPC
Crc/9329/2019
JUDGMENT
Sl. No. of the case : 9329/19
Date of its institution : 29.02.2016
Name of the complainant : Sh. Paramjeet Singh, S/o Late Sh.
Surender Singh, R/o 12/66, 3rd
Floor, Tilak Nagar, New Delhi
Date of Commission of offence : 13.11.2014
Name of the accused : (1) Rahis, S/o Sh. Ramjani, R/o H.
No. D-430/7, Bharat Vihar, Kakraula
More, New Delhi
(2) Mukesh, S/o Sh. Batk Singh, R/
o Plot No. A-107, Gali No. 7,
Bhagwati Garden Extension, New
Delhi
Offence complained of : 406/182/34 IPC
Plea of accused : Not Guilty
Case reserved for orders : 01.12.2023
Final Order : Conviction/Acquittal
Date of orders : 15.12.2023
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BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused persons namely Rahis and Mukesh upon a charge sheet filed by the police station Uttam Nagar under section 406/182/34 Indian Penal Code (IPC) .
2. Briefly stated, as per the case of prosecution, the present FIR was registered on the basis of the complaint filed by the complainant namely Paramjeet Singh. As per the complaint, the complainant is the registered owner of a motorcycle make model Pulsar bearing registration no. DL 4SBH 4405. On 10.10.2014, he had given the said motorcycle to the accused Rahis at his shop situated at India Auto Service Centre, Jain Road for repairing. Thereafter, the accused Rahis did not return the said motorcycle to him. On 13.11.2014, the complainant was informed by the accused Rahis that he had given the said motorcycle to his known person Mukesh from whom the said motorcycle got stolen. The accused Rahis had also gave information about the theft of the motorcycle of the complainant to the police officials.
3. After completing the formalities, investigation was carried out by PS Uttam Nagar and a charge sheet was filed against the accused persons. The charge was framed against the accused persons for the offence punishable u/s 406/34 IPC, to which they pleaded not guilty and claimed trial. Also, a separate charge for the offence punishable u/s 182 Page 2 of 27 IPC was framed against the accused Rahis to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, prosecution has examined five witnesses.
• Ct. Narender was examined as PW-1;
• Sh. Paramjeet Singh, the complainant, was examined as PW-2; • SI Brahm Prakash, the investigating officer, was examined as PW-3;
• W/HC Shashikala was examined as PW-4; and • Sh. Kunal, brother of the complainant, was examined as PW-5.
5. PW-1 was one of the police officials who was examined by the prosecution in the present case in order to prove the guilt of the accused persons. During his examination-in-chief, he deposed that on 14.11.2014, he had received DD No. 2A. Thereafter, he along with ASI Braham Prakash reached at Bhagwati Garden Extension where they found one person namely Rahis (one of the accused of the present case). He was correctly examined by PW-1. The accused was running auto workshop who disclosed to the IO that one motorcycle which was given to him by the complainant Paramjeet Singh for repair was stolen. PW-1 further deposed that he remained at the spot along with the accused Rahis and IO went to the house of the complainant where he Page 3 of 27 was not found at that time. Thereafter, they came to the police station. PW-1 further stated that at about 3:30 PM, the complainant came to the police station and met with the IO who recorded his statement, prepared rukka and got the present FIR registered. Thereafter, he along with the IO and the complainant came to the spot i.e. shop of the accused Rahis. The accused Rahis was arrested vide arrest memo Ex. PW-1/A and his personal search was conducted vide personal search memo Ex. PW-1/B. The disclosure statement of the accused Rahis was recorded Ex. PW-1/C wherein he disclosed that he had given the motorcycle to the co-accused Mukesh. PW-1 was duly cross-examined by Ld. Counsel for the accused persons.
6. PW-2 is the complainant of the present case. During the examination- in-chief, he deposed that he had one bike pulsar bearing registration no. DL 4SBH 4405 which he had given to the accused Rahis at motorcycle repairing shop run by him at Bhagwati Garden Extension, Dwarka Mor. The said accused was correctly identified by him in the Court. He further stated that after two days when he asked him about his bike, the accused Rahees told him that the same was not yet repaired. Thereafter, on the next day, he had received a call from the accused that he had informed the police about the theft of his bike. When the complainant confronted the accused Rahees as to how was it stolen, the said accused informed him that he had given the same to some other persons for driving. Thereafter, he filed a complaint at the Page 4 of 27 PS Uttam Nagar Ex. PW-2/A and his bikes was never recovered. RC of his bike was Ex. PW-2/B.
7. PW-2 was also duly cross-examined by Ld. Counsel for the accused persons. During the cross-examination, the complainant had denied the suggestion that he had settled the matter qua the offence punishable u/ s 406 IPC with the complainant. He had also denied the suggestion that he had received the entire settlement amount from the accused persons.
8. PW-3 was the investigating officer of the present case. During the examination-in-chief, he deposed that on 14.11.2014, he was posted at PS Uttam Nagar, After receiving DD No. 2A, he reached at the spot i.e. Jain Road, Uttam Nagar where he met the accused Rahis (he correctly identified the accused Rahees in the Court). The said accused told the IO that one bike bearing registration no. DL 4SBH 4405 had come to his shop for repair and after repairing the same, he had handed over the same to the co-accused Mukesh from whom it was stolen. Thereafter, IO reached at the house of the complainant (owner of the said bike) where he could not be found. Thereafter, he went to the police station where the complainant came after some time and gave his written complaint on the basis of which rukka Ex. PW-3/A was prepared and the present FIR got registered. Thereafter, he went to the spot where the accused Rahees was arrested and his disclosure statement was Page 5 of 27 recorded. During the course of investigation, co-accused Mukesh was also searched by the IO and he was bound down after giving notice u/s 41A Cr.P.C Ex. PW-3/B. The disclosure statement of the co-accused Mukesh was recorded by the IO Ex. PW-3/C who informed that the bike got stolen from his. After the completion of the investigation, IO had filed the present charge-sheet. PW-3 was duly cross-examined by the accused persons.
9. PW-4 was the police official who had received the PCR call regarding the theft of the motorcycle. During the examination-in-chief, she deposed that on 13.11.2014, she was working at CPCR, police headquarter. On 13.11.2014, he had received a PCR call at channel no. 123 regarding the theft of motorcycle, and, thereafter, on the basis of the above said call, he filled up PCR form and the same was handed over to the command room. PCR form is Ex. PW-4/A.
10. PW-5 is the brother of the complainant. During the examination-in-chief, he deposed that on 10.10.2014, the complainant who is his brother had given his bike for repairing at the shop of the accused which was situated at Jain Road, Dwarka Road, Delhi. Thereafter, the accused persons informed him that the said bike was stolen from the shop. During the course of the investigation, his statement was recorded by the police Ex. PW-5/A. He correctly identified the accused Rahis Page 6 of 27 present in the Court and identity of the co-accused Mukesh was not disputed.
11. PW-5 was also duly cross-examined by Ld. Counsel for the accused persons. During the cross-examination, he admitted that the complainant is his cousin brother. He also stated that he used to reside with the complainant in the same house and he had seen the bike many a times. He also admitted that he did not remember the registration number of the said bike. He further deposed that he had accompanied the complainant to the repair shop of the accused for the repair of bike but did not know the details of the sign board of the repairs shop of the accused persons. He also admitted that the accused persons did not give any receipt regarding the repairing of the bike. He also stated that he did not know as to whether any payment was made by the accused Rahis to the complainant for the reimbursement of the bike before the Court. He also denied the suggestion that the accused Rahis had given Rs. 15,000/- to the complainant in the police station in the presence of the IO for settlement of the present case. He also denied the suggestion that the accused persons were falsely implicated in the present case.
12. The accused persons admitted the genuineness of FIR, certificate u/s 65B of the Indian Evidence Act and DD No. 2A dated 14.11.2014 Ex. Page 7 of 27 X-1 and X-3 respectively, u/s 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C).
13. After the completion of the prosecution evidence, statement of the accused persons u/s 313 Cr.P.C was recorded. The accused Rahis stated that he was falsely implicated in the present case. He had given the bike to the co-accused Mukesh as he had to take some patient to the hospital. When the co-accused informed him about the theft of the bike of the complainant, he had called at 100 number and gave the information. He also stated that he had settled the matter with the complainant and had paid him settlement amount of Rs. 23,000/-. The co-accused Mukesh in his statement had stated that he was falsely implicated in the present case. He had borrowed the bike from the accused Rahis as he had to take his wife to hospital. His bike got broken down due to which he had borrowed bike from the accused Rahis. However, the said bike got stolen when the same was parked in front of his house. He had informed the accused Rahis about the theft of the bike after which information was given to the PCR. Thereafter, both of them went to the police station where they got apprehended by the police officials. He further stated that they had already settled the matter with the complainant and paid him the settlement amount of Rs. 23,000/-. Both the accused persons did not choose to lead defence evidence, and, therefore, the same was closed.
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14. During the final arguments, Ld. APP for state submitted that all the prosecution witnesses completely supported the case of prosecution and no material contradictions could be seen in their testimonies. It was further contended that the accused persons in their statements recorded under section 313 Cr.P.C had also admitted the factum of entrustment of the case property and its subsequent misappropriation.
15. Per contra, Ld. Counsel for the accused persons submitted that the they were falsely implicated in the present case by the police officials at the instance of the complainant. Both the accused persons did not have dishonest intention to misappropriate the bike of the complainant, and, therefore, they could not be convicted for the offence punishable u/s 406/34 IPC. Also, the information regarding the theft of bike given to the police was not incorrect, and, therefore, the accused Rahis cannot be convicted for the offence punishable u/s 182 IPC. It was finally contended that even otherwise both the accused persons had compounded the present matter with the complainant for the offence punishable u/s 406/34 IPC and had also made payment of the settlement amount to the complainant.
LEGAL PROVISIONS INVOLVED
16. Section 405 IPC provides for the offence of criminal breach of trust. It reads as under:
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"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".
[Explanation [1].--A person, being an employer [of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid]
17. A bare reading of this provisions makes it very clear that if any property is entrusted to any person or that person gets dominion over any property and thereafter dishonestly misappropriates the same or converts it for his own use or uses it contrary to the contract or lawful Page 10 of 27 directions, then that person is said to have committed the offence of criminal breach of trust. Essential ingredients which need to be established by the prosecution in order to prove the offence of criminal breach of trust are as follows:
o Entrustment of the property; and o A dishonest misappropriation or conversion of the property by the person entrusted with the property to his own use; or o Dishonest use or disposal of the property in violation of the mandate of the law prescribing the mode in which the entrustment is to be discharged; or o Dishonest use or disposal of the property in violation of the terms of any legal contract either expressed or implied regarding the discharge of the instrument, or wilfully allowing some other person to do so.
18. Thus, the two distinct parts of the offence of criminal breach of trust are the creation of an obligation in relation to the property over which dominion or control is with the accused and misappropriation in dealing with the property dishonestly by the accused which is contrary to the terms of the obligation created. A reading of this provision suggests that the gist of the offence is dishonest conversion to one's own use of another's property.
19. First and foremost requirement which needs to be established by the prosecution is the "entrustment of property". The property must have been entrusted to a person thereby creating a trust of some kind. The Page 11 of 27 offender must hold the property on trust for some other person or in some way for his benefit. The natural meaning of 'entrusted' involves that the assured, should, by some real and conscious volition have imposed on the person, to whom he delivers the goods, some species of fiduciary duty. Further, the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them.
20. "Dishonest intention" is the essence of this offence. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust. 'Dishonest' is defined in section 24 IPC as wrongful loss and wrongful gain. As per section 23 IPC, 'wrongful gain' means gain by unlawful means of property to which the person gaining is not legally entitled and 'wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled. Misappropriation simpliciter would not be sufficient enough to constitute the offence of criminal breach of trust.
21. It should also be noted that dishonest intention on the part of accused is not required right at the time of entrustment of property. Mere proof of entrustment of property is sufficient for the offence of criminal breach of trust. Dishonest intention to misappropriate may develop after the time of entrustment of property. Reference can be taken from the decision of Page 12 of 27 the Hon'ble Allahabad High Court in the case of Ashrafi Lal vs. State 1978 CrLJ (NOC) 33 (All).
22. The burden of proving such dishonest intention is on the prosecution which can be justifiably inferred from the attending circumstances, the conduct of the accused and a false explanation given by him. Moreover, if the entrustment is proved and the accused fails to account for the property when he is accountable or is not able to offer an acceptable explanation for the loss, the onus to establish which is upon him, or offers a false explanation, a criminal intention may readily be inferred.
23. Once the entrustment is admitted, it is for the accused to explain as to how he dealt with the money. If the explanation is not acceptable, then the offence of criminal breach of trust is proved. Where it is the duty of the accused to pay over money at once or any different periods, his non-payment is prima facie evidence that he has wrongfully appropriated it to himself. Reference can be taken from the case of V. Ramashankar Patnaik vs. State of Orissa, (1983) 3 Crimes 526 (Ori) & In Re, Ch. Venkatasubbayya AIR 1956 Mad 452.
24. It should also be noted that once the offence of criminal breach of trust is completed then subsequent return or refund of the misappropriated amount or property is of no consequence and would not absolve the accused from this offence. At this stage, reference can be taken from Page 13 of 27 the decision of the Hon'ble Supreme Court in the case of Vishwa Nath vs. State of J & K AIR 1983 SC 174.
25. After discussing the settled legal proportions, I shall now be discussing the culpability of the accused persons in the present case. For the sake of convenience, I shall be discussing the culpability of the both the accused for the offence punishable u/s 406/34 IPC and culpability of the accused Rahis for the offence punishable u/s 182 IPC separately. CULPABILITY FOR THE OFFENCE OF CRIMINAL BREACH OF TRUST PUNISHABLE U/S 406/34 IPC
26. As discussed in the preceding paragraphs of this judgment, in order to bring home the guilt of the accused persons for the offence punishable u/s 406/34 IPC, the prosecution is required to establish beyond reasonable doubt the following elements:
• Complainant had entrusted his bike to the accused Rahis for repair work; and • The accused persons had dishonestly converted or misappropriated the bike of the complainant for their own use and / or in violation of the implied contract with the complainant.
27. Section 405 IPC merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust. As held by the Hon'ble Page 14 of 27 Supreme Court in the case of Som Nath Puri vs. State of Rajasthan 1972 SCC (1) 630, the words 'in any manner' in the context are significant. The section does not provide that the entrustment of property should be by someone or the amount recieved must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to, deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over.
28. In order to prove that the complainant had entrusted his bike to the accused for repair work, the prosecution had primarily relied upon the testimonies of the complainant PW-1 and his brother PW-5 (who was the eye-witness of the entrustment). PW-1 in his testimony had categorically stated that he had given his bike make model Pulsar bearing registration no. DL 4SBH 4405 to the accused Rahis for repair work at his shop situated at Bhagwati Garden Extension, Dwarka More. The factum of entrustment to the accused Rahis could also be corroborated from the testimony of PW-5, the brother of the complainant, who had categorically stated in his testimony that on Page 15 of 27 10.10.2014, the complainant had given his bike for repairing at the shop of the accused situated at Jain Road, Dwarka More, Delhi. He had also stated that he was with the complainant when the bike was given to the accused for repair.
29. Moreover, the factum of entreatment of the bike to the accused Rahis was also not specifically denied by the said accused. In the statement recorded u/s 313 Cr.P.C, the accused Rahis had not specifically denied the fact that the complainant had not given his bike to him for repair work. In fact, the accused Rahis had admitted that the said bike was given to the co-accused from whom it got stolen.
30. Therefore, in view of the above, I find that the prosecution has successfully proved beyond reasonable doubt the fact the complainant had entrusted his bike to the accused Rahis for repair work and there was an implied contract between them that the bike would be given back to the complainant after the repairs.
31. It is a settled proposition of law that once entrustment is proved, it is for the accused to prove as to how the property entrusted to him was dealt with in view of section 405 of the IPC. If the accused fails to produce any material for this purpose, the prosecution should not suffer therefor. Hence, burden to prove does not lie on the prosecution to prove the dishonest misappropriation / conversion by the accused if entrustment of the property on the part of the accused is duly proved by the Page 16 of 27 prosecution beyond reasonable doubt. It is for the accused to produce material to prove that he did not dishonestly misappropriate. Reference cane be taken from the decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh vs. Karanvir (2006) 5 Supreme Court Cases 381.
32. In the instant case, when the incriminating materials were brought to the accused Rahis, he stated that he had given the bike of the complainant to the co-accused Mukesh as he had to take some person to hospital. Thereafter, the said bike got stolen from the possession of the co-accused Mukesh. It should be noted that the explanation provided by the accused Rahis is not sufficient as no other evidence was produced on record by the said accused in support of his explanation/defence.
33. It is a settled proposition of law that statements given by the accused u/ s 313 Cr.P.C do not have any evidentiary value per se. It is a settled proposition of law that statement recorded u/s 313 Cr.PC can be taken into consideration by the court only to complete the chain of events and to corroborate the other evidences available on record.
34. In the present case, the accused Rahis did not lead any evidence in his defence in order to support his claims/statements made u/s 313 Cr.P.C. He could have examined himself u/s 315 Cr.P.C but he did not do the Hence, making a bald statement at the stage of SA u/s 313 Cr.P.C by Page 17 of 27 the accused would be of no help to him. Reference can be taken from the decision of the Hobble Supreme Court in the case of Dehal Singh vs. State of Himachal Pradesh AIE 2010 SC 3594 wherein while discussing the scope and relevancy of the statement recorded u/s 313 Cr.P.C, the Apex Court had held interalia the following:
"Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. Appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined, with reference to those statements. However, when an accused appears as witness in defence to disproof the charge, his version can be tested by his cross- examination.
35. Be that as it may, even if it is assumed that the burden of prove to prove the dishonest misappropriation/conversion would continue to lie on the prosecution only, I find that the prosecution has proved the same beyond reasonable doubt qua the accused Rahis in view of the subsequent discussions and findings.
36. The term "dishonestly" is defined under section 24 IPC as, "whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing !dishonestly".
37. Hence, it is the intention of the accused which is material. Dishonest intention exists when wrongful loss is caused to some other person or Page 18 of 27 wrong gain is caused to the accused. If a person who is legally entitled to a property is deprived from the same even temporarily then also it can be said that the said person has suffered wrongful loss.
38. Also, wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property as well as being wrongfully deprived of property. Therefore when a particular thing has gone into the hands of a servant/agent he will be guilty of misappropriating the thing in all circumstances which show a malicious intent to deprive the master of it. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Krishan Kumar vs. Union of India (1960) 1 SCR 452.
39. In the instant case, it has already been proved by the prosecution that the complainant had entrusted his bike to the accused Rahis for repair work. Hence, the accused Rahis was duty bound to return the same to the complainant after repair work. The said bike was already repaired by the accused Rahis and he continued to be in possession of the same even after one month without any reasonable justification. He did not return the same to the complainant even when the same was repaired. This could be inferred from the fact that the accused Rahis had himself admitted that he had given bike to the co-accused Manoj. It would mean that the bike was already repaired when the same was given to the co-accused Manoj, however, the complainant was not Page 19 of 27 informed about the same. This would show dishonest intention on the part of the accused Rahis to cause wrongful loss to the complainant as the complainant was deprived out of his property even if the same was temporary in nature.
40. Therefore, in view of the above discussions and findings, I find that the prosecution has successfully proved beyond reasonable doubt the fact that the complainant had entrusted his bike to the accused Rahis for repair work and the said bike was subsequently given by the accused Rahis to co-accused which caused wrongful loss to the complainant.
41. During the course of final arguments, Ld. Counsel for the accused persons argued that the accused persons could not be convicted for the joint liability of the offence as no role of co-accused Mukesh could be found. The said accused had borrowed bike from the accused Rahis as he had to take his wife to the hospital. Therefore, the co-accused Mukesh was not acting in furtherance of any common intention with the accused Rahis.
42. Section 34 IPC recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the common sense principle that if more than two persons intentionally do a Page 20 of 27 thing jointly, it is just the same as if each of them had done it individually.
43. Also, it should be noted that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
44. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention.
45. In the case of Afrahim Sheikh and Others v. State of West Bengal AIR 1964 SC 1263, it was held by the Hon'ble Supreme Court that "criminal act" under Section 34 IPC applies where a criminal act is done by several persons in furtherance of common intention of all. The criminal offence is the final result or outcome but it may be through achievement of individual or several criminal acts. Each individual act Page 21 of 27 may not constitute or result in the final offence. When a person is assaulted by a number of accused, the "ultimate criminal act" normally will constitute the offence which finally results or which may result in death, simple hurt, grievous hurt, etc. This is the final result, outcome or consequence of the criminal act, that is, action or act of several persons. Each person will be responsible for his own act as stipulated in Section 38 IPC. However, Sections 34 and 35 expand the scope and stipulate that if the criminal act is a result of common intention, every person, who has committed a part of the criminal act with the common intention, will be responsible for the offence.
46. Accordingly, to attract applicability of Section 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another. The ultimate act should be done in furtherance of common intention. Common intention requires a pre-arranged plan, which can be even formed at the spur of the moment or simultaneously just before or even during the attack. For proving common intention, the prosecution can rely upon direct proof of prior concert or circumstances which necessarily lead to that inference. However, incriminating facts must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis.
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47. In the instant case, perusal of the testimonies and other materials on record would show that there is no specific allegation against the co- accused Mukesh. He had only borrowed one bike from the co-accused as he had to take his wife to the hospital. There is nothing on record to show that both the accused persons had prior meeting of mind to commit the offence. Similarly, there is no material against the co- accused which could show that he was acting in furtherance of his common intention with the accused Rahis to dishonestly misappropriate the bike of the complainant which was entrusted to the accused Rahis. In fact, the prosecution did not categorically prove on record that the co- accused Mukesh had the knowledge that the bike provided by the accused Rahis to him belonged to the complainant.
48. Therefore, in view of the above, I find that the accused persons in the present case cannot be convicted for the joint liability. However, it would not mean that the accused Rahis would be acquitted in the present case for the substantive offence of criminal breach of trust punishable u/ s 406 IPC.
49. It is a settled proposition of law that if two persons are charged for having committed a substantive offence with common intention and one is acquitted, the other person can be held guilty for commission of the substantive offence if the prosecution evidence is clear that he had committed the substantive office. There is no bar for the conviction for Page 23 of 27 the substantive offence, provided there is evidence against him and no prejudice is caused to him. The omission to frame charge for the substantive offence alone being a curable omission is immaterial. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Wllie (William) Slaney vs. State of Madhya Pradesh 1955 SCR (2)1140 where it was held that:
50. In the instant case, as discussed in the preceding part of this judgment, the prosecution had categorically proved that the complainant had entrusted his bike to the accused Rahis for repair work. Once the entrustment is proved by the prosecution on the part of the accused beyond reasonable doubt, it is for the accused to produce materials to show that he did not dishonestly misappropriate the same. However, the accused Rahis did not lead any evidence in support of his defence that he had given the bike of the complainant to the co-accused in medical emergency. Even otherwise, the prosecution had successfully proved that the accused Rahis had caused wrongful loss to the complainant by depriving him out of his property as the same was not returned to him even after repair. Thereafter, wrongful loss was caused to the complainant when the said bike was subsequently stolen.
51. Also, no prejudice would be caused to the accused Rahis if he would be convicted for substantive offence alone as the said accused was very well aware about the his role in the present case throughout his trial. Page 24 of 27
52. Further, during the final arguments, Ld. Counsel for the accused persons had also contended that the complainant had settled the present matter with the accused persons during the course of the investigation and settlement amount was also paid by the accused persons to the complainant. It should be noted that this argument cannot be appreciated by this Court as this fact remained disputed. Complainant PW-2 in his cross-examination had specifically stated that he had not compounded the present matter with the accused persons. Similarly, PW-5 had also stated denied the suggestion qua the settlement. Moreover, the accused persons did not lead any evidence in support of their claim. They did not even examine themselves in the defence evidence. Making a bald statement at the stage of 313 Cr.P.C would be of no help to the accused persons.
53. Therefore, in view of the above, I find that the prosecution has successfully proved the guilt of the accused Rahis for the substantive offence punishable u/s 406 IPC beyond reasonable doubt CULPABILITY OF THE ACCUSED Rahis FOR THE OFFENCE PUNISHABLE U/S 182 IPC
54. As per the case of the prosecution, the accused Rahis had given false information to the police regarding the theft of bike of the complainant and thereby committed an offence punishable u/s 182 IPC. Page 25 of 27
55. Section 182 IPC provides for the offence of giving false information to the public servant with intent to cause the public servant to use his lawful power to the injury of another person. It reads as under:
"182. False information, with intent to cause public servant to use his lawful power to the injury of another person.-- Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
56. The crux of this offence is providing false information to a public servant. In the instant case, the accused had called the PCR and gave information about the theft of the bike of the complainant which was entrusted to him for repair work. There is nothing on record which could show that this information provided by the accused Rahis to the police was false and was given with intention to cause the police officials to exercise their lawful power which would cause injury to other person. The prosecution has brought nothing on record to prove that the Page 26 of 27 information about the theft of bike of the complainant which was provided by the accused was false.
57. Hence, in view of the above, the accused Rahis could not be convicted for the offence punishable u/s 182 IPC.
58. Therefore, in view of the above discussions and findings, accused Rahis S/o Ramjani stands convicted for the offence punishable u/s 406 IPC. However, he stands acquitted for the offence punishable u/s 182 IPC. Further, the accused Mukesh S/o Batk Singh stands acquitted for the offence punishable u/s 406/34 IPC.
Announced in the open court. (ANIMESH KUMAR)
MM-08, South West
New Delhi/15.12.2023
on 15.12.2023
It is certified that this judgment contains 27
pages and each page bears my signatures.
(ANIMESH KUMAR)
MM-08, South West
New Delhi/15.12.2023
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