Delhi District Court
State vs . Rakesh Kumar & Ors. on 27 July, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-031895-2017
Cr. Case 8584/2017
STATE Vs. RAKESH KUMAR & ORS.
FIR No. 151/2014
P.S Kapashera
27.07.2023
JUDGMENT
Case No. : 8584/2017
Date of commission of offence : Between 03.02.2014
and 05.04.2014
Date of institution of the case : 13.11.2017 Name of the complainant : Sh. Kishan Chand Sharma Name of accused and address : 1. Rakesh Kumar, S/o Sh. Ranjeet Yadav R/o Jagbir Choudhary Ka Makan, Raja Mohalla, Jasola Village.
Permanent address:
Village Mansoorpur, PS & PO Malipur District, Ambedkar, U.P State Vs. Rakesh Kumar & Ors. Page Nos.1 / 8
2. Ravi Singh S/o Sh. Ravinder Singh R/o H. No. 774, Patel Nagar, Gonda, U.P. Permanent address:
Jaipal Ka Makan, Saini Mohalla, Bijwasan.
3. Vinod Kumar S/o Sh. Bahuri Singh Yadav R/o Village Mahgaura Ki Madhi, PS Mahgaura, PO Pisawa, District Aligarh, U.P Offence complained of or proved : U/s 407/34 IPC.
Plea of the accused : Pleaded not guilty
Final order : Accused No. 1 -
Acquitted
Accused No. 2 -
Acquitted
Accused No. 3 -
Acquitted
Date reserved for judgment : 27.07.2023
Date of judgment : 27.07.2023
State Vs. Rakesh Kumar & Ors. Page Nos.2 / 8
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused persons namely Rakesh Kumar, Ravi Singh and Vinod Kumar (here-in-after referred to as accused no.1, accused no.2 and accused no.3 respectively), pursuant to charge sheet filed qua them under Section 407/34 of the Indian (hereinafter IPC for sake of brevity) subsequent to the investigation carried out at P.S:
Kapashera, in FIR no. 151/2014.
2. It is the case of the prosecution that between 02.03.2014 to 05.04.2014, at unknown time, the accused persons in furtherance of their common intention, delivered only 39 cartons out of the total of 40 cartons containing 800 mobile phones which where entrusted to them and which they had to deliver at Universal Digital company, Ahmdabad, Gujrat and they also removed 5 cartons containing 100 mobile phones of Videocon from the warehouse of the complainant, thereby committing criminal breach of trust in respect of the said property. Consequently, an FIR was registered in the present case and after investigation, the police filed the present charge sheet against the accused persons for commission of offence punishable u/s 407/34 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused persons. After hearing the arguments, charge for offence punishable u/s 407/34 IPC was framed against the accused persons to which they pleaded not State Vs. Rakesh Kumar & Ors. Page Nos.3 / 8 guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined two witnesses in total.
5. PW-1 was Ravinder Singh, who deposed that during investigation, he had gone to the PS but he did not remember the exact date. That, he had not given any statement about anyone regarding the present case. The said PW further deposed that he had no personal knowledge about the present case. He deposed that the police officials had taken his signatures on blank papers. Thereafter, the said PW was cross-examined by Ld. APP for the State as he was resiling from his previous statement. Through him, his statement was marked as Mark X.
6. PW-2 was Sh. Suresh Kumar, who deposed that he do not know anything about this case. Thatxw he never joined the investigation of this case. He deposed that police had once called him after the arrest of his brother i.e. accused Rakesh Kumar and had enquired about some mobile phones but he told them that he was not aware about anything in this regard. Thereafter, the said PW was cross-examined by Ld. APP for the State as he was resiling from his previous statement. Through him, his statement was marked as Mark 2A.
7. At this juncture, it is pertinent to note that State Vs. Rakesh Kumar & Ors. Page Nos.4 / 8 prosecution, in support of the present case could not secure the presence of complainant/PW Kirshan Chand Sharma despite efforts and the said witness remained unserved even through the office of DCP concerned and consequently, did not appear before the Court. Accordingly, PW Kirshan Chand Sharma was dropped from list of prosecution witnesses. The aforesaid witness/complainant as well as PW1 and PW2 were the only witnesses having knowledge with respect to the incident in question. During their testimony, PW 1 and PW2 failed to depose anything with respect to the culpability of the accused in the present case. Since, the prime witnesses with respect to the incident in question failed to depose anything with respect to guilt of the accused in the present case, all the remaining PWs being formal in nature were dropped from the list of prosecution witnesses. No other PW was left to be examined, hence, P.E was closed. Further, as no incriminating evidence as such appeared against the accused during prosecution evidence, recording of statement of accused u/s 313 r/w 281 Cr.P.C was dispensed with and the matter directly proceeded for final arguments.
FINAL ARGUMENTS, APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
8. Arguments adduced by Ld. APP for State and accused have been heard. Documents on record have been carefully perused. It has been argued by Ld. Counsel for accused that complainant/PW1 and PW2 were the only witnesses who could have narrated a detailed account of the incident in question State Vs. Rakesh Kumar & Ors. Page Nos.5 / 8 as it occurred and the possible culpability of the accused for the alleged offence and since the said PWs failed to depose anything with respect to the culpability of the accused for the alleged act and prosecution failed to bring on record any incriminating evidence against accused, the accused is entitled to be acquitted in the case.
9. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused persons Rakesh Kumar, Vinod Kumar and Ravi Singh have been indicted for offence u/s 407 IPC. Section 407 IPC provides for offence of criminal breach of trust by a carrier, wharfinger or warehouse- keeper. In order to attract liability under section 407 IPC, prosecution is required to prove that the accused was entrusted with some property; that he was entrusted with property in the capacity of a carrier, wharfinger or a warehouse keeper; and that the accused committed criminal breach of trust in respect of such property.
10. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
11. In order to prove the alleged offence against the State Vs. Rakesh Kumar & Ors. Page Nos.6 / 8 accused, it was required to be proved that accused persons Rakesh Kumar, Vinod Kumar and Ravi Singh had been entrusted with 40 cartons containing 800 mobile phones and that they had, in such capacity, dishonestly misappropriated / converted to their own use 1 carton of such cartons by delivering only 39 cartons out of the same to Universal Digital Company, Ahmedabad, Gujarat, as per instructions and also by additionally removing 5 cartons containing 100 mobile phones of Videocon from the warehouse of the complainant. However, during their testimony, PW1 and PW2 altogether failed to depose anything about the present case, much less about the liability of the accused persons for the alleged offence. Thus, the said PWs failed to depose anything with respect to the culpability of the accused persons qua the alleged offence. In the absence of any other eyewitness, only the said witnesses could have possibly deposed with respect to the accused being the persons who had committed criminal breach of trust with respect to the alleged mobiles phones of the company, which were entrusted to them in the capacity of their being the carriers/delivery agents of the same. Furthermore, no effort appears to have been made by the IO to trace any person, who would have witnessed the incident in question or to locate any CCTV camera which may have been installed in the vicinity of the spot, capturing the commission of offence. Thus, since nobody has seen the accused persons commit the alleged offence and PW1 and PW2 failed to deposed anything with respect to the liability of the accused persons, the commission of offence under section 407 IPC cannot be said to have been proved against the accused persons.
State Vs. Rakesh Kumar & Ors. Page Nos.7 / 812. Accordingly, this Court is of the view that prosecution has failed to prove beyond reasonable doubt that the alleged offence was committed by the accused persons. As a net result of the aforesaid discussion, this Court hereby holds the accused persons not guilty of commission of the said offence. Accused Rakesh Kumar, Vinod Kumar and Ravi Singh are thus, acquitted of the offence u/s 407 IPC.
13. Copy of this judgment be given free of cost to the accused persons.
Announced in open court on 27.07.2023, in presence of Digitally signed by APOORVA accused and Ld. Counsel for APOORVA RANA Date:
RANA accused. 2023.07.27 16:10:19 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/27.07.2023 It is certified that this judgment contains 08 pages, all signed by the undersigned.Digitally signed by APOORVA RANA
APOORVA Date:
RANA 2023.07.27
16:10:26
+0530
(APOORVA RANA)
M.M-10/Dwarka Courts/27.07.2023 State Vs. Rakesh Kumar & Ors. Page Nos.8 / 8