Delhi District Court
State vs . : Virender Kumar on 18 October, 2008
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IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Virender Kumar
FIR NO : 26/88
U/s : 411/409/380 IPC
PS : Adarsh Nagar
JUDGMENT.
1. Sl. no. of the case 130/88
2. Date of Institution 22.10.99
3. Offence complained of
or proved U/sec. 411/409/380 IPC
4. Date of Offence 11.2.88
5. Name of the complainant Charan Singh
6. Name of the accused Virender Kumar
S/o Ram Chander
R/o Village Khera
Kalan, PS Samai Pur Badli, Delhi.
6. Plea of the accused Pleaded not guilty.
7. Final order Acquitted
8. Date of Order 18.10.08
Brief reasons for decision:
The story of the prosecution in brief is as under :-
That accused Virender Kumar was the conductor in DTC bus on 11.2.88 . One raid was conducted by the DTC staff on that day wherein the 2 accused was found in his possession certain tickets etc. and cash which were entrusted to him by the department for the purpose i.e. selling tickets to the commuters in the bus on the route. He was also found making wrong entries in the wavel form. The excess amount as per the record was also found in his bag which was not deposited by him nor any entry was made by him in the relevant form. Thus, FIR bearing no. 26/88 u/sec. 411/409/380 IPC was registered against the accused Virender Kumar .
2. IO conducted detailed investigation and filed his final report u/sec. 173 Cr.P.C. After compliance of initial requirements copies of documents were supplied to the accused u/sec. 207 Cr.P.C. and arguments on charge was heard. Charge u/sec. 409/411 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. It is important to mention here that in order to establish the liability of the accused nine witnesses have been examined by the prosecution and there is no evidence from the side of accused in his defence. As per the record it is revealed that PW 2 was called again in the witness box and on the second time he was given a new no. as PW 3. Thus, in fact there are nine witnesses examined, however, number have been given to prosecution witnesses up to ten. Thus, for the sake of convenience serial no. shall be mentioned as ten as in judicial file itself.
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4. PW 1 Tek Chand has stated that he was posted in DTC as senior binder. His duty was checking the packets of tickets and after checking the same, bundles were make with the help of other officials. In the year 1998, (the exact date was not remember by the witness) , he was checking the tickets and found 8 blocks , each block containing 100 tickets, found missing. The remark was made in the output register regarding missing of the ticket bundles by him. Enquiry was also made by him from the department. Remaining series of bundles were kept in the office. PW 1 was instructed by the higher officials for completing the series . PW 1 later on came to know that the missing bundles have been recovered from someone but he did not know from whose possession the missing bundles or missing tickets were recovered. The output register was not brought by the witness in the Court. This witness was found resiling from his statement so given to police u/sec. 161 Cr.P.C. . Therefore, ld. APP for State sought permission to cross-examine this witness which was allowed and during cross-examination the suggestions so given by the ld. APP for State was declined that he came to know that the missing tickets were recovered from the bag of accused Virender Kumar who was working as conductor at Khera Kalan. Nothing corroborated as emerged from the further cross-examination of ld. APP for State.
5. PW 2 Charan Singh has stated that on 11.2.88 he was 4 posted as checking staff supervisor at BBM Depot. One information was received that bogus tickets were sold at Adarsh Nagar bus stand. Upon receiving this information they proceeded to GTK Depot alongwith other staff and reached at Adarsh Nagar bus stand. Depot Manager told them to check the cash in the bags of employees who were employees at Adarsh Nagar bus stop. Upon checking it was found that one person whose entries and cash found correct . Thereafter another person i.e. accused Virender Kumar was checked , he was found selling advance tickets to the passengers and his bag was found one block of ticket which were 100 in number ticket . Ticket Issue Register was also checked , these tickets were not found entered in the said register and the house of accused at Khera Kalan was also checked but nothing was found therein . This witness was also resiling from his earlier statement so given u/sec. 161 Cr.P.C. . Ld. APP for State has sought permission to cross-examine this witness and upon cross-examination after giving suggestions no suggestion was approved by the witness. Ld. APP for State could not found anything corroborative . This witness was not cross- examined completely on 6.4.05 and the cross-examination was deferred. It is important to mention here that PW 2 never appeared in witness box for his further cross-examination by the accused nor any effort was made by the prosecution despite giving several opportunities . Thus, as per the law the testimonies of PW 2 is incomplete. Thus, the examination of PW 2 is no examination in the eyes of law as he is not cross-examined and no 5 opportunity have been given to the accused for cross-examination. Thus, the evidence of PW 2 cannot be relied upon.
6. PW 4 Sh. Hawa Singh has stated to the effect that in the year 1988 he was posted as ATI in DTC. On that day he alongwith Ram Niwas and Supervisor Charan Singh and Sri Kishan went to checking the vehicles. Upon checking they found one accused Virender Kumar conductor was booking the tickets in advance and cash was count. ATS informed PW 4 that they have recovered one extra block. Thereafter the Incharge of team informed the police officials. The entry regarding the recovery of extra block was not made in the Way Bill. This witness was found resiling from his statement so given to police u/sec. 161 Cr.P.C. . Therefore, ld. APP for State sought permission to cross-examine this witness which was allowed and during cross-examination suggestions were denied by the witness. During cross-examination by the counsel for defence this witness stated that he did not recover the block of tickets himself but he had seen the same. He was told by the other team members that it was recovered from the accused.
7. PW 5 D. Majumdar , Manager Printing Press has stated that on 28/29.4.88 he was on leave from his office. At that time he was working as Press Supdt. in DTC Press, Okhla. At that time press used to work round the clock in three shifts. When he return from leave, one Deputy 6 Manager informed him that one block of serial no. 091 containing 100 numbers of tickets was missing from the Press. The missing report was mentioned in the Ticket Binding Register. This witness was also resiling from his earlier statement. The ld. APP for State also with the permission of the Court cross-examined him and nothing material could emerge from the cross- examination by ld. APP for State. During cross-examination by the ld. Defence counsel for accused, this witness however stated that he did not brought any record showing that one Joginder was working in Press on the day of incident.
8. PW 6 Rajesh Kumar was again found resiling from his earlier statement . He used to work in a store of the press. He further stated that he did not know anything about the case.
9. PW 7 Inder Singh has stated that at the relevant time as mentioned in the story so narrated by the prosecution he used to work as ATI in DTC. He alongwith Sri Kishan went to the police Station Jahangir Puri/ Adarsh Nagar . It is further stated by PW 7 that he did not remember anything what proceedings were conducted by the IO. This witness was also found resiling from his earlier statement and he was cross-examined by ld. APP for State after seeking permission from the Court. Suggestions given by the ld. APP for State again were declined by the PW 7 and nothing material could 7 emerged from the examination of this witness.
10. PW 8 Bhim Singh Sharma has stated that on 11.2.88 he was posted at GTK Depot. When he reached in his office he received one telephonic information that two conductors of DTC was selling bogus tickets at Adarsh Nagar bus terminal. Bhim Singh called Charan Singh, the traffic inspector and Ram Niwas Gupta ATS alongwith other members of checking staff. They all went to Adarsh Nagar bus terminal for checking and when they returned back to him , they informed that one extra block was found from one Virender Kumar conductor belt no. 17171. Chran Singh ATI had taken no. of block . Charan Singh was sent to ticket center BBM Complex. After verification Charan Singh informed that this block was not issued till that date and it was issued by 2.30 p.m. on that day. Virender Kumar alongwith conductor bag , tickets and cash had fled from Adarsh Nagar bus terminal. PW 8 has further stated that Virender Kumar did not report in the office. One complaint was lodged with the PS Adarsh Nagar for taking action against Virender Kumar. The matter was investigated and raid was conducted at the house of Virender Kumar. One bag alongwith tickets were recovered from his house. PW 8 was however was not present at that time. The raid was conducted in the presence of checking staff of DTC comprising Charan Singh. During his cross-examination by ld. Defence counsel for accused PW 8 stated that he came to know the factum of raiding the house of Virender 8 Kumar on next day when he reached his office. It was further stated by PW 8 during his cross-examination that he did not know whether Virender Kumar was found present at his house at the time of raid. PW 8 further stated that he was having no control over the matter of issuance of ticket from the Central Ticket Section.
11. PW 9 Jagroop Singh Pathania the IO of this case has stated to the effect that on 11.2.88 he was posted at PS Adarsh Nagar and was on patrolling duty alongwith Ct. Surender Singh . At about 12.30 noon when Charan Singh met him and handed over the tehrir to him and produced one Veer Singh, conductor, DTC Depot and he further stated that Virender Singh who was booking in advance had already fled from the spot. One rukka was prepared and one constable was sent to police station to get the FIR registered. Manager of BBM Depot was enquired and search of accused Virender Kumar was conducted. Search was also conducted at the house of Virender Kumar at Khera Kalan where he was not found anything and nothing was recovered from there. The family of accused produced Virender Kumar at police station Adarsh Nagar alongwith the bag. During his cross-examination PW 9 stated that Charan Singh had not produced any tickets alongwith the rukka to him. PW 9 the IO of this case has stated that the tickets and bags which were taken into possession were not brought in the Court on 26.7.08 i.e. (at the time of examination of PW 9).
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12. PW 10 Ct. Vijay Kumar had stated that he brought one original FIR No. 26/88 which was registered on 11.2.88 by duty officer HC Zile Singh. The examination of this witness was objected to by the counsel for accused as the person (duty officer) who has registered the FIR was not brought in the court and during cross-examination also PW 10 stated that he was not working in the year 1988 in Delhi Police and he never seen Ct. Zile Singh signing or writing. Only record was brought by PW 10 in the Court.
13. After examination of these witnesses by the prosecution PE was closed and one opportunity was given to the accused for recording of his statement u/sec. 313 Cr.P.C. wherein all the available incriminating evidence was explained to him for which accused pleaded his innocence and stated that he do not want to lead any evidence in defence.
14. I have heard final arguments so advance by the ld. APP for the State and on behalf of ld. Defence counsel for accused and I have also perused the material placed before me alongwith the testimonies of all the Pws. Before proceeding any further It is important to mention here that charge is framed u/sec. 409/411 IPC .
15. Before proceeding further , it is important to discuss the scope of these sections 409 & 411 IPC.
10Section 409 IPC reads as under :-
Whoever , being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend tot ten years, and shall also be liable to fine.
16. Section 409 IPC lays down the offence pertaining to criminal breach of trust by public servant or by banker , merchant or agent. It is further important to define the term Criminal Breach of Trust which is defined as u/sec. 405 IPC.
Section 405 IPC reads as under :
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 11 implied , which he has made touching the discharge of such trust, or willfully 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 12 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. The essential ingredients for criminal breach of trust as defined under these Sections are :-
1. The accused must have been entrusted with the property or dominion over it.
2. The accused must have been mis-appropriated the property or dis-possesed of that property in value of such trust
18. Section 409 IPC lays down criminal breach of trust . The another essential ingredient of Section 409 IPC that :
Such breach of trust must be by public servant, banker, merchant or agent .
After reading Section 405 IPC and 406 IPC and 409 IPC together following are the essential ingredients : 13
1. That the accused was entrusted with some property.
2. That he was so entrusted as a clerk or servant
3. The accused has dominion over such property
4. That he committed breach of trust in respect of that property.
19. Section 411 IPC reads as under :-
Whoever dishonestly received or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
The essential ingredients of Section 411 IPC are as under:-
1. That some property was stolen;
2. That the accused received or retained such property;
3. That the accused received or retained it dishonestly;
4. That the accused did so knowingly or having reason to believe that such property was stolen.
20. It is important to mention here that the prosecution has to 14 prove that the property as defined in section 411 IPC is stolen property which is further defined u/sec. 410 IPC.
Section 410 IPC reads as under :
Property, the possession whereof
has been transferred by theft, or by
extortion , or by robbery, and property
which has been criminally
misappropriated or in respect of which
criminal breach of trust has been
committed, is designated as "stolen
property" whether the transfer has been
made, or the misappropriation of breach
of trust has been committed, within or
without India. But, if such property
subsequently comes into the possession
of a person legally entitled to the
possession thereof, it then ceases to be
stolen property.
21. With regard to first offence i.e. U/sec. 409 IPC under which charge has been framed against the accused. The first essential 15 ingredient is "entrustment" of the property. In its most general significance all its imports is a handing over of the possession for some purpose which may not imply the conferring of any proprietary right at all. It was held by Lord Haldane in Lake V. Simmons (1927) AC 487. 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.
22. Thus, the expression of "entrustment "carries with it the implication that the person handing over any property or on whose property is handed over to another, continues to be its owner. Further, the person handing over property must have confidence in the person taking the property so as to create a fiduciary relationship between them.
23. Section 405 IPC does not provide that the entrustment of property should be by someone or the amount received 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 entrustement and for the benefit of the owner. The expression "entrusted " in Section 409 IPC is used in a wide 16 sense and 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 . Similar observation have been made by Hon'ble Supreme Court of India in Somnath Puri Vs. State of Rajasthan AIR 1972 SC 1490. In another case State of Gujrat Vs. Jaswant Lal , AIR 1968 Sc 700 It was held by Supreme Court of India that in case of entrustment , the ownership of the property retained by the person who entrusts the same, before there can by any entrustment , there must be an obligation annexed to the ownership of the property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner.
24. It is further important to mention here that Section 406 IPC is not attracted here in the absence of proving of entrustment of property or dominion over the property or another and in the absence of proof of dishonest intention .
25. In the present case the prosecution has stated that accused was having in his possession on the day of incident when the raid was conducted by DTC staff, certain tickets which were not issued by the 17 department and the tickets bearing those serial nos. yet to be issued. Under these circumstances with regard to element of "entrustment" the following things are to be considered before proceeding any further
1. Who has entrusted the property.
2. How the entrustment have been done in the present case.
26. The DTC is considered to be "Owner". For the purpose of meaning of "Owner" defined u/sec. 405 IPC as well as 409 IPC. DTC is considered to be the owner because the task of printing and disbursing of tickets to the employees for collecting revenue on behalf of the State is vested with the DTC. As per the law in the present case as per the story so narrated by the prosecution the accused was found at the spot with the excess amount in his bag and after verification of his wavel form it was found that the certain entries were not made in the wavel form and one additional bundle of tickets was also found in his possession which later on found not to be issued by the department. Thus, as per the investigation so conducted by the IO and the charge sheet so filed by the IO the story so narrated by the prosecution is that the accused had procured and fabricated those tickets and has either taken it out from the printing press of his own and without permission had manipulated or fabricated those tickets and on the basis of these bundle of tickets which is procured by him he had collected the revenue from the commuters in the bus and the same is not 18 accounted for by him. Under these circumstances I am of the considered opinion that the element of entrustment by the department of the tickets given to accused is missing here and if the story of the prosecution is to be believed as true and there is no other story presented by the prosecution and the same is reflected from the charge sheet as well and thus, it has to be relied upon in all its true latter and spirit , then it cannot be said that there is an "entrustment" by the department i.e. DTC , and the property i.e. Tickets to the accused. Prosecution itself in the charge sheet has stated that the accused of his own had procured and manipulated to have in his possession certain tickets on the basis of which he was collecting the revenue which was kept by him for his personal views and was not accounted by the department though it was incurring a loss to the department and a gain for himself. Nothing possible explanation of the act of the accused, thus is not covered under the definition of "entrustment" . Thus the essential ingredient for attracting this Section and proving the liability of the accused in this case i.e. "entrustment" is lacking here. Under these circumstances I am of the considered opinion that the very first essential ingredient of proving the liability of the accused that the "accused must have been entrusted with the property or dominion over it, has not been shown by the prosecution". This opinion is further strengthened after perusal of the examination of the prosecution witnesses. Most of the prosecution witnesses have turned hostile and have not supported the story 19 of the prosecution. It is further revealed from the evidence so led by the prosecution that one of the material witness PW 2 was not fully examined and was not subsequently summoned by the prosecution for completing the examination and opportunity for his cross-examination was not given to the accused. Thus, the examination of the material witness PW 2 who is also given the no. as PW 3 by clerical mistake, is incomplete. Hence the testimony of PW 2 in any case is not relevant. It is further important to mention here that this witness was also resiling from his earlier statement. Thus, the testimony of PW 2/PW 3 Charan Singh cannot be considered. Accordingly testimonies of other Pws i.e. PW 1 Tek Chand, Hawa Singh (retired ATI) , D. Majumdar (Manager Printing Press), Rajesh Kumar (Binder in DTC Press), Inder Singh (ATI in DTC) and Bhim Singh (the then depot manager) also does not defined the essential element of "entrustment" in the present case against the accused Virender Kumar. PW 1 Tek Chand was working as senior binder and his duty was to check the packets of tickets . In his examination he failed to give serial number of the missing tickets. The Output Register was also not brought by him. This witness turned hostile and was cross-examined by ld. APP for State and upon his cross-examination of by ld. APP of State nothing could be find out from his examination. Hawa Singh, Retired ATI , the other eye witness who was the part of the raiding party on that day also said nothing in his examination regarding the liability of the accused. Another witness D. 20 Majumdar , Manager Printing Press, Rajesh Kumar Binder and Inder Singh , the then ATI in DTC did not supported the story of the prosecution. The depot manager had stated that he received a telephonic information that two conductors of DTC was selling bogus tickets. Thus the statement of Bhim Singh , the then depot manager is nothing but hearsay evidence and it cannot be relied upon unless and until corroborated by the main person who had narrated this fact to Bhim Singh. Thus, there is no corroboration from the record of this fact as stated by PW 8 Bhim Singh that two conductor of DTC including the accused Virender Kumar were selling bogus tickets at Adarsh Nagar bus terminal. Thus, the essential ingredient to establish the liability of the accused in this case and to proving the charge against him beyond reasonable doubt i.e. "entrustment" is not fully established by the prosecution against the accused. Thus, the essential ingredient required to be proved in this case "entrusted" dishonestly misappropriated or converted to his own use of that property also cannot be said to be established against the accused Virender Kumar as there is no "entrustment" in this case established by the prosecution hence it cannot be said that the said property was dishonestly misappropriated by the accused or he converted to his own use that property. It is further important to mention here that the prosecution has not been able to show the bundle of tickets so received from the possession of accused, were property of DTC. The story of the prosecution and the investigation so conducted by 21 the IO does not established the main essential requirement that the said bundle so received from the possession of accused were the property of DTC and those tickets were procured and issued by the department to the accused and accused did not accounted for the amount/revenue so collected by him on the basis of selling those tickets. The investigation so conducted by the IO and the charge sheet reflects that the accused himself had procured these tickets which were not issued by the department at that particular relevant point of time.
27. Thus, if the story of the prosecution itself is to be relied upon then the story is confusing in itself though on the other hand the accused is stated to have been entrusted with the property as narrated by the prosecution and on the other hand the accused is stated to have manipulated and procured certain bundle of tickets which were not issued by the department to him and on the basis of those tickets he was collecting the revenue for his personal gain and the loss to the department. The prosecution thus, have not shown its evidence that the extra bundle of tickets which were found in possession and the accused Virender Kumar was the property of the DTC.
28. In the light of these facts and circumstances , I am of the considered opinion that essential ingredient of Section 409 IPC which is 22 defined u/sec. 405 & 406 IPC are not established by the prosecution beyond reasonable doubt against the accused . It is however important to mention here the story so narrated by the prosecution in itself with regard to charge of Section 409 IPC against the accused is confusing . Thus, I am of the considered opinion that all the essential ingredients of Section 409 IPC are not established against the accused.
29. Another Section i.e. 411 IPC is attracted here in this case against the accused. The foremost essential ingredient of Section 411 IPC is that the property should be stolen property and subsequently it is to be proved that such stolen property is retained by the accused and such retaining is dishonestly and accused knows or having reasons to believe that the such property is stolen. Thus, the foremost essential requirement to establish the liability of the accused u/sec. 411 IPC is that "The property should be stolen property first of all".
30. It has been already stated above that the prosecution has not been able to show that the bundles of tickets were issued by the department or were released or provided by the Press of DTC. The prosecution himself has stated that the accused had procured and manipulated and forged these tickets. If the story of the prosecution is again relied upon and there is no alternative to considered the story of the 23 prosecution as it is, the essential ingredient that the property i.e. the tickets was stolen from the DTC is also missing here. It has not been alleged by on behalf of the DTC that these properties were stolen at any point of time by the accused. The DTC during whole investigation conducted by the IO and the relevant documents so annexed with this file alongwith the charge sheet filed u/sec. 173 Cr.P.c. reflects that the accused was having in possession of additional bundle of tickets which were not issued by the department to him. He had procured those bundles of his own . Under these circumstances I am of the considered opinion that the prosecution has misreably failed to establish the liability of the accused and hopelessly failed to establish the liability i.e. tickets were stolen from the department i.e. DTC. It is further important to mention here that none of the person have been examined by the prosecution who were present at the time of conducting the raid and were examined by the IO for supporting the story of the prosecution and the witness have turned hostile and had resile from earlier statement so given to the IO at the time of investigation. Thus, I am of the considered opinion that the essential ingredients of Section 411 IPC is also missing here and cannot be said to have been established by the accused in the absence of any evidence against him. Under these circumstances I am of the considered opinion that liability of accused u/sec. 411 IPC is also not established by the prosecution against the accused beyond reasonable doubt.
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31. With regard to any other possibility of the liability of the accused in this case, it has to be established from the evidence and the record. The prosecution on the one hand has stated that the accused had managed to procure one bundle of tickets with him and he was having additional cash with him and the entries were not made in the wavel form with regard to additional cash on that particular day when the raid was conducted . The prosecution however has not been established this fact as none of eye witness of DTC staff have not supported the story of the prosecution. The fact of additional cash find in possession of accused Virender Kumar is also not established by the prosecution as this fact has not established during the testimonies of the Pws. Under these circumstances from the perusal of the testimony of all the witnesses no other liability of the accused is reflected which is covered in other Section of Indian Penal Code though the allegations against the accused in the charge sheet are so many but have not been proved by prosecution beyond reasonable doubt and none of the prosecution witnesses have supported its story.
32. It is further important to mention here that this point is of less important , however cannot be ruled out, that the prosecution has not examined all the witnesses . No explanation is given by the prosecution in 25 this regard. The prosecution evidence was closed despite giving the several opportunities. It is further important to mention here that the concerned duty officer who registered the FIR was also not produced by the prosecution in the Court for his testimony and the person who had appeared on behalf of the duty officer had not seen the concerned duty officer signing or writing , thus he could not identify his writing. Thus the testimony of a person who deposed on behalf of the duty officer is also not relevant as per the law.
33. In the light of above facts and circumstances and the reasons so given above, I am of the considered opinion that the prosecution has not been able to establish the liability of the accused beyond reasonable doubt. It is further observed after careful perusal of the record that the investigation so conducted by the IO is incomplete and IO himself has not shown as to what was the liability of the accused. The evidence so collected by the IO is also not complete. Thus, the investigation so conducted by the IO and final report u/sec. 173 Cr.P.c. is faulty and incomplete. The remaining work has been done by the prosecution witnesses, thus, the prosecution witnesses has not been able to establish the liability of accused for proving the case against the accused beyond reasonable doubt. Under these circumstances I am of the considered opinion that the liability of the accused Virender Kumar s/o Ram Chander is 26 not established by the prosecution beyond reasonable doubt, hence he is acquitted of the charge u/sec. 409/411 IPC . File be consigned to the record room.
Announced in open Court (PRASHANT KUMAR)
Dated 18.10.08 Metropolitan Magistrate
Delhi
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FIR No. 26/88
PS Adarsh Nagar
18.10.08 Present : Ld. APP for the state.
Accused present on bail.
Final arguments heard. Final judgment is pronounced vide separate order sheet. Accused Virender Kumar S/o Ram Chander is acquitted of the charges so levelled against him. Surety for accused Virender Kumar stands discharged. Documents if any, be returned. Endorsement if any, be cancelled as per rules. File be consigned to the record room.
(PRASHANT KUMAR) Metropolitan Magistrate Rohini/Delhi 18.10.08