Delhi District Court
State vs . Anil Etc. on 11 September, 2014
IN THE COURT OF SH. HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 03 (WEST),
TIS HAZARI COURTS, DELHI - 110 054.
FIR No.982/2004
PS - Nangloi
State Vs. Anil etc.
Unique Case ID No.02401R1300162005
J U D G M E N T
(a) Sr. No. of the case 4167/1/08
(b) Date of offence 16.10.2004
(c) Complainant Dinesh Kumar S/o B. R. Vikram R/o G - 3/15, Sector
- 11, Rohini, New Delhi - 110 085.
(d) Accused persons (1) Anil @ Khan @ Doctor S/o Sh. Ram Chander R/o
Village Jasor Kheri, PS Sadar Bahadurgarh, District
Jhajjar, Haryana.
(2) Dharambir S/o Sh. Attar Singh R/o Village
Malpura, PS Dharuhera, District Rewari, Haryana.
(e) Offence Under Section 407 of The Indian Penal Code, 1860
read with Section 34 of The Indian Penal Code, 1860.
(f) Plea of accused persons Pleaded not guilty
(g) Final order Conviction
(h) Date of institution 25.06.2005
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 10.09.2014
FIR No.982/2004 Page No.1 to 17
1. The brief facts of this case are that the accused persons have been charge sheeted for committing offence punishable under Section 407 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860. The allegations against the accused persons are that on 16.10.2004, accused Dharamvir being the driver and employee on truck bearing registration number HR55B1499 was entrusted with Brass Plates, Sheet and Coils worth Rs.27,46,538/ from M/s Meta Strips Ltd. Goa and he was required to deliver the aforesaid articles at M/s Padam Prabhu Trading Co., 9175/4, Multani Dhanda, Paharganj, Delhi and M/s Jaguor and Co. Ltd., A - 6, Wazirpur Industrial Area, Delhi on 21/22.10.2004, however, on the way accused Dharamvir alongwith other coaccused namely Virender (Since PO) and Anil in furtherance of their common intention dishonestly misappropriated or converted to their own use the aforesaid articles and failed to deliver the same at the aforesaid destinations at Wazirpur Industrial Area and Paharganj. According to the prosecution, accused persons have committed offence punishable under Section 407 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of challan was supplied to accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against accused persons under Section FIR No.982/2004 Page No.2 to 17 407 of The Indian Penal Code, 1860 read with Section 34 of The Indian Penal Code, 1860 vide order dated 19.09.2005 to which they pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
3. In order to prove the guilt of accused persons, prosecution has examined twelve witnesses. PW1 ASI Krishan Pal has proved and exhibited formal FIR Ex.PW1/A. PW1 was examined, not crossexamined by the accused persons despite opportunity given and was discharged.
4. PW2 Dinesh Kumar in gist has deposed that on 16.10.2004, their Goa office hired truck bearing registration number HR15B1499 in Rs.34,000/ for transportation of goods 17 tonnes brass plats, sheets and coils from Goa to Delhi of two companies Jaguar and Company and Padam Trading Company. Truck driver was given seven days time to deliver goods in Delhi. On 20.10.2004, truck driver informed them telephonically that he had reached at Tikri Border and asked about the location where the goods were to be unloaded. Their office incharge told him to unload goods as per bilties. Goods were not delivered till 22.10.2004 to respective companies and they inquired from truck owner Mahavir Singh resident of Gurgaon about the truck. Mahavir Singh told them that truck would reach destination on 23.10.2004. When goods were not delivered on 23.10.2004, they again contacted Mahavir Singh telephonically who replied that he had no information about truck. He FIR No.982/2004 Page No.3 to 17 lodged complaint Ex.PW2/A at PP Tikri Border. He exhibited two bilities Ex.PW2/B and Ex.PW2/C respectively and destination copy/payment challan as Ex.PW2/D in his evidence. He further deposed that he came to know the name of drivers as Dharamvir and Anil and of cleaner Sukhvir Singh from Mahavir Singh. PW2 was examined, crossexamined and was discharged.
5. PW3 HC Jasvinder Singh has proved and exhibited FIR Ex.PW3/A. PW3 was examined, not crossexamined by the accused persons despite opportunity given and was discharged.
6. PW4 Ram Singh in gist has deposed that in October, 2004 truck no. HR55B1499 was loaded with copper at Goa to Delhi through their office situated at Goa and vehicle was to reach at Delhi on 22.10.2004. On 21.10.2004, he received call from driver of vehicle to tell about address where goods to be unloaded. He informed the driver the address, but, on next day he received call from party to whom the material was to be delivered that the same has not been delivered. He narrated the incident to his senior who lodged complaint in the PS. On 1st or 2nd November, 2004, he went to PP Tikri Border where accused Dharamvir made disclosure Ex.PW4/A. Accused Dharamvir took them to Kesar Road, Haryana and got recovered truck bearing number HR55B1499 which was seized by police vide Ex.PW4/B. Accused Dharambir was arrested vide Ex.PW4/C. The truck was empty. He correctly FIR No.982/2004 Page No.4 to 17 identified accused Dharamvir in the Court. PW4 was examined, not crossexamined and was discharged.
7. PW5 Ct. Lalit Kumar has deposed that on 27.04.2004, he was posted at PS Nangloi and on that day, he alongwith HC Devender joined the investigation of this case. He alongwith IO went to Tis Hazari Courts, Delhi. IO took the permission from the Court for the interrogation of the accused Anil Kumar @ Master and Virender @ Vinder. After interrogation of the accused persons, IO arrested both the accused persons in his presence vide Ex.PW5/A and Ex.PW5/B. Disclosure statements of both accused persons were recorded vide Ex.PW5/C and Ex.PW5/D. IO took PC of accused Anil and accused Virender was sent to JC. They took the accused Anil to Sanjay Gandhi Hospital and got him medically examined. They alongwith the accused went to Mundka village in search of case property and accused Suresh, but in vain. They they returned back to Tikri Kalan Border where IO recorded his statement. He correctly identified the accused Anil and Virender in the Court. PW5 was examined, crossexamined and was discharged.
8. PW6 ASI Ram Diya in gist has deposed that on 23.10.2004, Dinesh Kumar PW2 came to PS Nangloi and gave statement Ex.PW2/A. FIR was registered and case was handed over to him. He went in search of accused and truck with Dinesh Kumar and HC Devender Singh. He gave notice under Section 160 of The FIR No.982/2004 Page No.5 to 17 Code of Criminal Procedure, 1973 to driver of vehicle. Dharamvir came to PS on 26.10.2004. But he did not tell anything about the truck. On 01.10.2004, Dharamvir came to PP Tikri Border and stated that he drives truck bearing registration number HR55B1499 of his maternal uncle. The truck was recovered at his instance vide Ex.PW4/B. Accused Dharamvir made disclosure vide Ex.PW4/A, was arrested vide Ex.PW4/C and was searched vide Ex.PW6/A. He took four days police cutody of accused Dharamvir and searched for accused Anil, but he could not be apprehended and no recovery was made. When proceedings under Section 82 and 83 of The Code of Criminal Procedure, 1973 were going on against accused Anil and Virender, they were arrested by special cell of Lodhi Colony. He procured documents regarding the same and applied for production warrants. On 27.04.2005, both the said accused were produced in the Court and after permission were interrogated. Anil made disclosure vide Ex.PW5/B and Virender vide Ex.PW5/C. Accused Anil was arrested vide Ex.PW5/B and Virender was arrested Ex.PW5/A. Virender was sent to judicial custody and he took three days police custody of Anil and search was made for accused Suresh, but in vain. No recovery was effected. Thereafter, case was transferred to special cell. He correctly identified accused Anil, Dharamvir and Virender (since PO) in the Court. PW6 was examined, crossexamined and discharged.
FIR No.982/2004 Page No.6 to 17
9. PW7 ASI Ramphal and PW9 Ct. Anand have deposed that on 11.04.2005, they were posted at special cell and on receipt of secret information that some goons would enter from Rohtak side, ACP Sanjeev Kumar prepared a raiding party comprising of SI Amardeep Sehgal, SI Tara Chand, SI Shri Niwas, SI Rajender, HC Har Krishan, Ct. Vinod, PW7 and PW9. They proceeded towards Ghevra Mod and took position as per instructions of ACP. At about 03:15 pm, a ascent car bearing registration number DL4CM9394 and one truck behind the car bearing registration number HR55B1899 came which were signaled to stop. Car slowed down and firing started coming from the said car. PW9 fired at the car as per instructions of ACP. The car was stopped. The driver of said car was Master Anil and on other front seat of car, one Binder was sitting whose names were revealed later on in the investigation. They both were apprehended. The truck also stopped and three persons Pawan, Dharamvir and Ashok whose names were revealed later on in investigation were sitting on it. From Anil, Dasi Katta, one live cartridge and two used cartridges were recovered. From Binder, one desi katta, two live cartridges and one used cartridge was recovered. Accused Binder was handed over to ASI Daya Nand. Accused Anil was handed over to SI Surender. Dharamvir, Pawan, Anil and Binder @ Virender made disclosures vide Ex.PW7/A to Ex.PW7/C respectively. After disclosure SI Suresh Kaushik arrested accused Pawan Ashok and Dharamvir, FIR No.982/2004 Page No.7 to 17 wrote tehrir and sent PW7 to PS for registration of FIR. PW7 went to PS, got FIR registered and came back at the spot with copy of FIR and original Rukka and handed over to SI Suresh Kaushik. 388 sacks containing packets of Nirma washing powder was recovered from the truck. Accused persons were correctly identified by PW7 and PW9 in the Court. PW7 and PW9 were examined, crossexamined and were discharged.
10. PW8 Yogesh, Assistant Ahlmad has identified disclosure statements of Anil, Virender, Dharamvir as Ex.PW7/A to Ex.PW7/C. PW8 was examined, not crossexamined by the accused persons despite opportunity given and was discharged.
11. PW10 Inspector Suresh Kaushik has deposed that on 11.04.2005, he was posted as SI in Special Cell, NR, Rohini. On that day in case FIR No.56/2005 under Section 186/353/307/411/34 IPC of PS Special Cell, he arrested accused Virender @ Binder (since PO), accused Anil @ Master and accused Dharamvir alongwith two other accused persons. During interrogation, accused Virender, Anil and Dharamvir disclosed their involvement in the present case. He recorded their disclosure statements. Disclosure statement of accused Anil was recorded vide Ex.PW7/A. Disclosure statement of accused Virender was recorded vide Ex.PW7/B. Disclosure statement of accused Dharamvir was recorded vide Ex.PW7/C. He informed about the same at PS Nangloi. ASI Ram Diya recorded his statement and FIR No.982/2004 Page No.8 to 17 collected documents from him. PW10 was examined, crossexamined and was discharged.
12. PW11 Mahavir has proved and exhibited superdarinama Ex.PW11/A. He further deposed that at relevant time, driver of his truck was Dharamvir. PW11 was examined, not crossexamined by the accused persons despite opportunity given and was discharged.
13. PW12 V. K. Singh has deposed that on 21.06.2005, he was posted as SI at Special Cell, Rohini, Delhi and on that day, case file of this case was handed over him for investigation. As investigation was already complete, he prepared the charge sheet and filed for judicial verdict. PW12 was examined, not crossexamined by the accused persons despite opportunity given and was discharged.
14. On 05.02.2014, further prosecution evidence was closed. STATEMENT OF ACCUSED PERSONS
15. After closure of prosecution evidence, the statement of accused persons were recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to them. Accused persons denied all the allegations and stated that they are innocent and have been falsely implicated in this case. Accused persons opted not to lead evidence in their defence.
FIR No.982/2004 Page No.9 to 17
16. Final arguments heard. Record is perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS 17(i)(a). It is the contention of the defence that prosecution has not been able to prove that the goods were entrusted to the accused persons. It is pointed out that PW2 has deposed that there were two drivers on the vehicle in question, however, PW11 superdar has deposed that there was only one driver on his vehicle. It is further contention of the defence that the accused have been falsely implicated in this case as PW5 has deposed that on 27.04.2004, he alongwith IO went to Tis Hazari Courts and the present both accused were interrogated and arrested after permission from the court. It is the contention of the defence that how come the accused persons were arrested even six months prior to the alleged incident in question. It is further the contention of the defence that the accused persons reached Delhi with goods on 21.10.2014 and called the complainant to give the address of delivery and in fact delivered articles to one firm to which they were supposed to be delivered and the other set of articles could not be delivered as the same were looted by unknown persons after given stupefying substance to the accused persons. The accused persons find themselves in fields somewhere in Haryana after 3 - 4 days and they do not know who looted the goods. It is further contention of the defence that the truck in question was recovered from Haryana after one month and not from the accused FIR No.982/2004 Page No.10 to 17 persons. It is further contention of the defence that in fact it is the accused persons who are victim in this case.
17(i)(b) On the other hand, it is the contention of the prosecution that it has been proved on record in the form of oral evidence of PW1 and documentary evidence Ex.PW2/B and Ex.PW2/D that the goods in question were entrusted to the accused Dharamvir as the same were loaded on the truck of the accused bearing number HR55B1499 driven by him from Goa. It is further contention of the prosecution that since goods were not delivered at their destinations, therefore, the accused Dharamvir committed criminal breach of trust as being carrier. It is fairly admitted by the prosecution that there is no admissible evidence on record to prove entrustment and misappropriation at the part of accused Anil. It is further contention of the prosecution that it has proved its case beyond reasonable doubt against accused Dharamvir.
17(ii) This Court has considered the contentions raised by either side. There is no admissible and reliable evidence on record qua accused Anil that he was entrusted with the goods in question. The deposition of PW2 that it was revealed on inquiry from owner that the name of other driver was Anil is only hearsay evidence and therefore, could not be relied upon. PW11, the owner of vehicle in question has also not deposed that Anil was also the driver of his vehicle at the relevant point of FIR No.982/2004 Page No.11 to 17 time. The statement of accused Anil recorded under Section 313 read with Section 281 of the Code of Criminal Procedure, 1973 that he brought articles till Tikri Border is also no help to the prosecution as it cannot take form of substantive evidence and is itself not sufficient to prove entrustment of goods to him, therefore, the accused Anil is liable to be acquitted in this matter. The PW2 has deposed that on 16.10.2004, their office of Goa hired truck bearing registration number HR15B1499 to transport the goods of two companies for Delhi for Rs. 34,000/ and was given 7 days time to deliver the goods in Delhi. On 21.10.2004, driver of said truck informed that he had reached Tikri Border and asked about the location where the goods are to be unloaded and their office incharge told him that goods are to be delivered as per address mentioned in bilties. When goods were not delivered till 20.10.2014 to respective companies they inquired from owner of truck namely Mahavir Singh who told them that goods would reach destinations on 23.10.2004. On 23.10.2004, whey they again contacted Mahavir Singh then he replied that he had no knowledge as to where the truck is at that time. He lodged complaint Ex.PW2/A at Tikri Border. He exhibited two bilities as Ex.PW2/B and Ex.PW2/C respectively and destination copy/payment challan as Ex.PW2/D. PW11 has deposed that he is the owner of truck bearing registration number HR55B1499 and accused Dharamvir was the driver of the said truck at corresponding time and his truck was loaded with goods for transportation FIR No.982/2004 Page No.12 to 17 from Goa to Delhi on 16.10.2004 which were not delivered. He further deposed that his truck was seized by police officials and he took it on superdari vide Ex.PW11/A. He identified the truck in question as Ex.P1. Ex.PW2/D dated 16.10.2014 bears the name of accused Dharamvir as Driver of vehicle bearing registration number HR55B1499. Ex.PW2/B and Ex.PW2/C mentions the goods loaded on the truck in question on 16.10.2014. In these circumstances, in the form of evidence of PW2, PW11 and Ex.PW2/B to Ex.PW2/D, it has been proved on record that the goods in question were entrusted to the accused Dharamvir as carrier being driver of truck in question. It has also been proved on record in the form of evidence of PW2 and PW11 that the goods were not delivered at their destinations which went un controverted. Now as far as the contention of the defence that accused persons delivered one set of articles at the given destination is concerned, no such evidence has been brought on record by the defence as the onus for the same was on the defence, once the prosecution has proved that the goods were not delivered at the given destinations. The contention of the accused persons that they were given stupefying substance by some unknown persons and goods alongwith vehicle were looted by them is also without any force as no such evidence has been brought on record by the defence. No such complaint has been proved on record by the defence to have been made to any authority by any accused. In these circumstances, it FIR No.982/2004 Page No.13 to 17 appears that the said defence has been taken only for purpose of taking defence and is therefore, forceless. As far as it is pointed out by defence that the PW5 has deposed that accused Anil Kumar and Virender were interrogated and arrested on 27.04.2004 is concerned, in the opinion of this Court, the said date is clerical mistake which is clear from the fact that PW5 has deposed that the said two accused persons were arrested vide Ex.PW5/A and Ex.PW5/B and their disclosure statements were recorded vide Ex.PW5/C and Ex.PW5/D. The said exhibit are dated 27.04.2005. PW6 has also deposed that accused Anil and Virender were arrested on 27.04.2005 in the Court and Ex.PW5/A to Ex.PW5/D were prepared. So, it is clear that the year has been wrongly recorded as 2004 instead of 2005 at the time of recording of evidence, therefore, is typographical error and therefore, it will have no adverse effect upon the the case of prosecution. Now, as far as last contention of the defence that there is no evidence on record as to how and with whom the accused Dharamvir misappropriated the entrusted goods as the goods were not traced out in this matter is concerned, in opinion of the Court, it is not required to be proved the manner and mode of misappropriation. Failure to account may lead to an inference of dishonest misappropriation. In the present matter, where false explanation has been furnished by accused regarding the goods in question, dishonest misappropriation of goods can be certainly inferred. So, this defence is also forceless and is hereby rejected. FIR No.982/2004 Page No.14 to 17
18. In this matter, it has come on record in the form of deposition of PW2 that on 16.10.2004, their office of Goa hired truck bearing registration number HR15B1499 to transport the goods of two companies for Delhi for Rs.34,000/ and was given seven days time to deliver the goods in Delhi. On 21.10.2004, driver of said truck informed that he had reached Tikri Border and asked about the location where the goods are to be unloaded and their office incharge told him that goods are to be delivered as per address mentioned in bilties. When goods were not delivered till 20.10.2014 to respective companies they inquired from owner of truck namely Mahavir Singh who told them that goods would reach destinations on 23.10.2004. On 23.10.2004, why they again contacted Mahavir Singh that he replied that he had no knowledge as to where the truck is at that time. He lodged complaint Ex.PW2/A at Tikri Border. He exhibited two bilities as Ex.PW2/B and Ex.PW2/C respectively and destination copy/payment challan as Ex.PW2/D. PW11 has deposed that he is the owner of truck bearing registration number HR55B1499 and accused Dharamvir was the driver of the said truck at corresponding time and his truck was loaded with goods for transportation from Goa to Delhi on 16.10.2004 which were not delivered. He further deposed that his truck was seized by police officials and he took it on superdari vide Ex.PW11/A. He identified the truck in question as Ex.P1. Ex.PW2/D dated 16.10.2014 bears the name of accused Dharamvir as Driver of vehicle bearing FIR No.982/2004 Page No.15 to 17 registration number HR55B1499. Ex.PW2/B and Ex.PW2/C mentions the goods loaded on the truck in question on 16.10.2014. In these circumstances, in the form of evidence of PW2, PW11 and Ex.PW2/B to Ex.PW2/D, it has been proved on record that the goods in question were entrusted to the accused Dharamvir as carrier being driver of truck in question. It has also been proved on record in the form of evidence of PW2 and PW11 that the goods were not delivered at their destinations which went uncontroverted.
In these circumstances, it has been brought on record that goods in question were entrusted to accused Dharamvir on 16.10.2004 at Goa for delivery at two destinations at Delhi as carrier as being driver of truck no. HR55B1499, but the same were not delivered at their destinations as per entrustment. So the ingrediants of commission of offence punishable under Section 407 of The Indian Penal Code, 1960 has been brought on record by prosecution against accused Dharamvir beyond shadow of reasonable doubt. So he is liable to be held guilty for the same. As already discussed above, there is no reliable and admissible evidence on record qua entrustment of goods to accused Anil, therefore, he is entitled for benefit of doubt in this matter.
19. In view of the aforementioned facts and circumstances, this Court is of the opinion that prosecution has duly proved its case against the accused Dharambir FIR No.982/2004 Page No.16 to 17 for offence punishable under Section 407 of The Indian Penal Code, 1860 beyond shadow of reasonable doubt, however, prosecution has failed to prove its case against the accused Anil @ Khan @ Doctor beyond reasonable doubt. Accordingly, the accused namely Dharambir is hereby convicted for offence punishable under Section 407 of The Indian Penal Code, 1860, however, accused namely Anil @ Khan @ Doctor is hereby acquitted for offence under Section 407 of The Indian penal Code, 1860 read with Section 34 of The Indian penal Code, 1860.
20. Copy of judgment be supplied to the convict Dharambir free of cost. Announced in the open Court on September 11, 2014.
(HARVINDER SINGH) M.M.03/THC (West), Delhi/11.09.2014 FIR No.982/2004 Page No.17 to 17