Delhi District Court
Vijender Singh vs State on 1 October, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Crl. Appeal No.37/12
Vijender Singh ......Appellant
Versus
State .......Respondent
J U D G M E N T
By way of this appeal, Vijender Singh - appellant has challenged his conviction and sentence for an offence U/s 408 IPC in case FIR no.30/02 PS Subzi Mandi Railway Station, Delhi, by the court of learned Metropolitan Magistrate - 03 (Central), Delhi vide judgment of conviction dt.29.06.2012 and order of sentence dt.04.07.2012.
2. Vide impugned order on sentence, the accused - appellant has been sentenced to undergo Simple Imprisonment for one year and to pay compensation of Rs.25,000/ to the complainant U/s 357 Cr.P.C. or in default of payment of compensation to undergo further Simple Imprisonment for a period of one month in view of decision in Suganthi SureshKumar Vs. Jagdeeshan 2002 (2) SCC 420.
3. In brief, it is case of prosecution that the accused - petitioner was Crl. Appeal No.37/12 1 entrusted with a sum of Rs.2,05,000/ on 02.02.02 at about 11.00 a.m. in the capacity of a Munim, while he was serving with Kallu Mal Jyoti Ram and Co., Shop No.36, Gur Mandi, Sonepat. This amount was entrusted to him with directions that he should deposit the same in the account of the company, with Cooperative Bank, Narela, but he committed criminal breach of trust by misappropriating this amount.
Case FIR No.30/02 was initially registered on the statement of accused - appellant, in which he alleged commission of robbery of the said amount by someone at Narela after putting red chilly powder.
Another allegation levelled against the accused - petitioner is that he lodged false report with police of PS Subzi Mandi that someone had robbed the aforesaid amount entrusted to him.
4. Trial Court has acquitted the accused of the offence U/s 182 IPC for want of complaint U/s 195 Cr.P.C.
5. When the accused pleaded not guilty and claimed trial, prosecution led its evidence and examined following 8 witnesses : PW1 Dr. Ranu Sinha, from Aruna To prove MLC Ex.PW1/A of the accused Asaf Ali Hospital and Ex.PW1/B i.e. treatment card of the patient.
PW2 Ct. Karambir To prove part of investigation conducted in his presence by SI Hem Raj.
PW3 HC Ayaz Khan To prove part of investigation conducted in his presence by SI Hem Raj.
Crl. Appeal No.37/12 2 PW4 Mukesh Kumar To prove entrustment of Rs.2,05,000/ to the accused - petitioner and as to what the accused disclosed to him.
PW5 Ct. Daya Ram To prove that no complaint regarding any incident of robbery or theft was reported to him while he was on duty, as RPF Constable in Bhatinda train Express No. 4732 on 02.02.02 at 12.14 p.m. and that he did not deposit the said amount in the bank.
PW6 Pawan Goel To prove the factum of entrustment of cash of Rs.2,05,000/ and that he did not deposit the said amount in the bank.
PW7 Hari Kishan Gulati To prove recovery of bag containing Rs.
2,05,000/ in cash on 05.02.02 at the instance of the accused from the house which was on rent with one Jaivir, brother inlaw of accused.
PW8 ASI Rajender Singh To prove recording of FIR Ex.PW8/A on the basis of rukka sent by SI Hem Raj Singh on 02.02.02.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused admitted that he was serving with complainant Mukesh Kumar and that on 02.02.02, he was entrusted with a sum of Rs.2,05,000/ by Mukesh Kumar in the Bank, but pleaded that this amount was snatched from him on the way. He denied to have lodged any false complaint. He denied that anything was recovered from his possession or at his instance from Sonepat. The accused then pleaded false implication at the Crl. Appeal No.37/12 3 instance of Pawan Goel.
After hearing arguments and going through the record, learned Trial Magistrate held the accused guilty only of the offence U/s 408 IPC and sentenced him thereunder, in the manner indicated above. Hence this appeal.
Arguments heard. File perused.
As noticed above, case was registered on the statement of Vijender Singh, accused - petitioner, wherein he alleged about robbery of Rs.2,05,000/ at about 12.15 p.m. when he alighted from a train at Narela Railway Station, while chilly powder was put in his eyes.
Entrustment
7. Learned counsel for appellant contended that the prosecution failed to lead evidence before the Trial Court as to what were the number of the currency notes which were allegedly entrusted to the accused - petitioner for being deposited in the bank and in absence thereof, it cannot be said that any such amount was entrusted to him.
It has also been contended by learned counsel for appellant that the case property was got released on superdari but ultimately never produced before the court which also adversely affect the case of prosecution and as such, it cannot be said that any such amount was entrusted to the accused.
During trial, to prove the factum of entrustment prosecution examined PW4 Mukesh Kumar and PW6 Pawan Goel.
Crl. Appeal No.37/12 4
According to PW4 Mukesh Kumar, on 02.02.02, he handed over in cash a sum of Rs.2,05,000/ to accused Vijender Singh, who was working with him. Cash was in the shape of 16 packets (each containing 100 notes of the denomination of Rs.100/ and 9 packets, each containing 100 notes of the denomination of Rs.50/).
According to the witness, this amount was entrusted by him to the accused for being deposited in the bank. At that time, one letter head was also given by him to the accused. According to the witness, the accused did not deposit the amount entrusted to him in the bank and rather, pretended that someone had robbed this money.
PW6
8. PW6 Pawan Goel, brother of Sh. Mukesh Kumar also deposed before Trial Court about entrustment of Rs.2,05,000/ in cash in the form of 29 packets. According to the witness, in 16 packets each contained 100 notes of the denomination of Rs.100/ and in 9 packets, each contained 100 notes of the denomination of Rs.50/).
According to PW6 Pawan Goel, this amount was entrusted to the accused, who was working with them, for being deposited with bank. One letter head was also given by him to the accused. However, the accused did not deposit the amount entrusted to him in the bank and rather, pretended that someone had robbed him of this money. Further, according to the witness, they informed the Crl. Appeal No.37/12 5 police.
A perusal of statement of PW6 Pawan Goel would reveal that his statement was not subjected to any cross examination despite opportunity.
PW4
9. So far as testimony of PW4 Mukesh Kumar is concerned, he stated in his cross examination to have not brought the original currency notes or their photocopies. He admitted to have utilized the currency notes in his daily affairs. It is in the statement of PW4 Mukesh Kumar that he handed over the cash contained in bag to the accused after counting the same.
A perusal of the Trial Court Record would reveal that the case property i.e. a sum of Rs.2,05,000/ alleged to have been got recovered by the accused on 05.02.02 was seized by the police and ultimately got released on superdari by Sh. Mukesh Kumar on furnishing of superdari bond in the sum of Rs.2,05,000/, undertaking to produce the case property during trial or to forfeit the sum to the State. Mukesh Kumar also furnished indemnity bond undertaking to indemnify to better claimant in respect of sum of Rs.2,05,000/. When accused has admitted entrustment of amount, nonproduction of the currency notes which were got released on superdari before the Trial Court does not adversely affect the case on the point of entrustment.
Learned counsel for the appellant has contended that present case came to be registered on the statement of the accusedapplicant made at PP Subzi Mandi Crl. Appeal No.37/12 6 Railway Station. As regards nonreporting of the matter at Railway Station Narela or PS Narela, the contention of learned counsel for the appellant is that accusedapplicant being an innocent person did not know that he was supposed to lodge complaint there.
A perusal of record would reveal that statement of the accusedappellant, which led to registration of the FIR was recorded by SI Hemraj of PS Subzi Mandi. On the basis of rukka sent by SI Hemraj to PS Railway Mains Delhi, present case came to be registered.
Since as per version of put forth by the accusedappellant himself, occurrence took place at Railway Station Narela, he being an victim of robbery, accused must have raised hue and cry at that time. Passengers travelling in the train or others present at the platform must have been attracted to the victim. However, accused did not examine any such passenger or person to lend corroboration to his statement about commission of robbery.
Had chilly powder been put in the eyes of the accused, someone from the passengers must have come forward to help and remove him to hospital or for his help at the spot. In the statement made before the police, accusedappellant stated that three persons made him to alight from the compartment and left him at the platform. Had any such person helped him in alighting from the compartment, he must have examined them before the police or they, of their own, must have accompanied him to the police and made statements. However, Crl. Appeal No.37/12 7 none of them was examined before the police to lend corroboration to his testimony.
As per version given to doctor, the accused got himself medically examined at some private hospital of Narela. But no medical record was got produced before Court. Accused also did not state anywhere as to who had taken him to private clinic and from where. Railway Police is available at every railway station. Accusedappellant could rush to the Railway Police Narela and report the matter but he did not do so. PW5 Ct. Daya Ram from RPF, who was on duty, stated in Court that at about 12.14 am he checked Bhatinda Express train no. 4732 down but no one informed hm about theft or robbery of any bag. All this belies the version put forth by accusedappellant regarding commission of robbery of Rs.2,05,000/ in the running train while he was to alight at Nareala Railway Station.
Factum of recovery
10. As regards recovery, prosecution examined before Trial Court PW2 Ct. Karamvir, PW3 HC Ayaz Khan, PW4 Mukesh Kumar, and PW7 Hari Kishan Gupta.
According to PW3 HC Ayaz Khan, on 05.02.02 when he was joined by SI Hem Raj in the investigation, Vijender Singh, accused was interrogated. During interrogation, Vijender Singh made disclosure statement Ex.PW2/A and then led to H.No.446, Sikka Colony, District Sonepat, Haryana. On reaching there, the Crl. Appeal No.37/12 8 accused pointed out towards one small rexine bag lying in an old iron box in a store room. This rexine bag was containing a sum of Rs.2,05,000/ and one letter head. These were seized vide memo Ex.PW3/B. The bag was then sealed with the seal bearing impression 'HR'. The witness produced search memo and arrest memo Ex.PW3/C and Ex.PW3/D. He further identified bag Ex.P1, as the bag which was recovered at the instance of the accused.
It is significant to note that statement of PW3 HC Ayaz Khan has gone unchallenged for want of any cross examination. This goes to show that the accused did not challenge the veracity of PW3 HC Ayaz Khan, on the point of recovery of rexine bag Ex.P1 containing Rs.2,05,000/ and on letter head bearing the name of the shop, from H.No.446/62, Sikka Colony, District Sonepat, Haryana and about their seizure vide memo Ex.PW3/B. PW4 Mukesh Kumar also deposed before the Trial Court that in his presence Vijender Singh, accused present at police station disclosed that the amount of Rs.2,05,000/ was lying at his sister's house at Sonepat where she was residing as a tenant. Further, according to the witness, he accompanied by the police reached the house of sister of the accused. On reaching there, the accused pointed out towards cash lying in a trunk. Police seized the same vide memo Ex.PW 3/B. The witness also proved disclosure statement Ex.PW3/A made by the accused. He further proved arrest memo and personal search memos Ex.PW3/C & Ex.PW3/D. Crl. Appeal No.37/12 9 In his cross examination, PW4 Mukesh Kumar could not tell the address of the house of sister of the accused saying that he did not remember the same but sme does not create doubt in his version. It is in his cross examination that at the time of recovery, the gate of the said house was made of iron and that they had gone to the inner room. According to the witness, he had gone to the ground floor portion of the house. There was a road in front of the said house. Although, he could not tell the exact size and colour of the trunk, he specifically stated that money was recovered from an iron trunk. The witness volunteered that the said trunk was lying recovered with some clothes over it. Although, in his cross examination, PW4 Mukesh Kumar further stated that he could not tell as to who had picked up the bag from the box, according to the witness, the currency notes were checked and seized.
PW4 Mukesh Kumar stated in his cross examination that at the time of recovery, persons present there included family members of the accused as well as landlord of the house. They remained at the spot for about one and half hour.
PW7 Hari Kishan Gulati, landlord of H.No.446/16, Sikka Colony, District Sonepat, Haryana. According to him, Jaibir, brotherinlaw of Vijender Singh, accused was a tenant, at a rate of Rs.1300/ p.m. As regards recovery, PW7 stated that on 05.02.02, police reached his house in the company of his employer and at the pointing out of accused, one black colour rexine bag, was recovered from the other box lying in the tenanted portion of Jaibir. Crl. Appeal No.37/12 10
Further according to PW7 Hari Kishan Gulati, the aforesaid bag was containing Rs.2,05,000/ in cash and police seized the bag and cash vide memo Ex.PW3/B. However, when the bag was produced in court the witness could not remember if it was the same bag which was seized.
In his cross examination, PW7 stated that on 05.02.02, three police personnels had come to his house at 10.00/11.00 p.m. but he did not remember the name of those police personnels, who had reached the store room first. According to PW7, he had not gone to the store room on the ground floor where the old iron box was lying. He also could not tell if the bag in question was recovered from the box, the reason being that the box was not opened in his presence. It is also in his statement that police had shown the bag to him in the varandah and then told him that it was recovered from an iron box lying in the store room. He believed what was told to him by the police.
Statement of PW7 recorded in cross examination cannot be read in isolation. It has to be read in whole. As noticed above in the chief examination the witness categorically stated that the accused and his employer were accompanying the police on 05.02.02, at the time they came to the tenanted premises and that it is at the pointing out of the accused that one black colour rexine bag was recovered from an old box lying in a portion of the tenant room. He also stated about recovery of Rs.2,05,000/ from the said bag and that the same was seized by the police. As regards his attestation on recovery memo Crl. Appeal No.37/12 11 Ex.PW3/B, although the witness stated that its contents were not read over to him and he put his signatures thereon, it was for the witness to explain as to why he put signatures without going through its contents. It is not believable that he would have put his signatures without going through its contents. It is not case of the witness that he was forced by the police to sign these documents. It is also not his case that he was at any point of time asked by the police to be a false witness against the accused. Nowhere it was suggested to PW7 that brotherin law of the accused was not a tenant in any portion of the tenanted premises. Accused could examine his brother in law Jaibir to rebut the evidence led by the prosecution but he was never examined despite opportunity given to lead evidence.
From the material available on record, this court does not find any reason to disbelieve the finding recorded by the Trial Court on the point of entrustment of the amount and commission of breach of trust by the accused - appellant. Accordingly the judgment of conviction of the accused passed by the Trial Court is upheld.
On Sentence
11. On the point of sentence, learned counsel for appellant submits that during investigation, inquiry and trial, the accused remained in custody for about 3 months and that having regard to the fact that the accused regularly appeared before the Trial Court while facing the trial and that he is not a previous convict, Crl. Appeal No.37/12 12 lenient view be taken.
Learned counsel has further submitted that the accused was employed with the aforesaid firm titled as Kallu Mal Jyoti Ram and Co., Shop No.36, Gur Mandi, Sonepat in place of his father, when his dather suffered from paralytic attack.
12. Having regard to nature of the offences committed by the accused in committing criminal breach of trust, regarding a sum of Rs.2,05,000/, which was entrusted to him as a Munim / Clerk and further that the accused, instead of coming out with truth, tried to mislead police and the complainant by reporting that the said amount had been robbed, I deem it a fit case to sentence the convict
- appellant to undergo simple imprisonment for a period of 8 months for the offence U/s 408 IPC and to pay fine of Rs.5000/ or in default of payment of fine further Simple Imprisonment for 20 days. I order accordingly. Since a sum of Rs.2,05,000/ was got recovered by the accused, this court does not deem it to be a fit case to grant any compensation to the complainant. Benefit of provisions of Sec.428 IPC is also provided to the accusedappellant.
Trial Court Record be sent back and appeal file be consigned to Record Room.
Announced in Open Court
on 01.10.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Appeal No.37/12 13