Delhi District Court
State vs Narender Raghav Ors on 15 July, 2024
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IN THE COURT OF MS. NABEELA WALI: LD. CJM : NEW DELHI
DISTRICT : PATIALA HOUSE COURTS: NEW DELHI
State Vs. Narender Raghav & Ors.
FIR No. 69/2004
U/s 379/411/34 IPC & 409 IPC
P.S. Special Cell
1. CC No. : 51398/2016
2. Date of institution of case : 14.07.2004
3. Date of Commission of Offence : 05.05.2004 to 18.05.2004
4. Name of the complainant : SI Davinder Kumar
5. Name, parentage & Address : Brij Kishore
S/o Sh. Daya Kishan
R/o VPO Mitraoun, H. No. 14,
Main Road, Mitraoun, Delhi.
5. Offence complained of or proved : U/Sec. 409/120-B IPC
6. Plea of Accused : Accused pleaded not guilty.
7. Final Order : Acquitted Date of reserving the judgment : 02.07.2024 Date of pronouncement of judgment : 15.07.2024 THE BRIEF BACKGROUND & GENESIS OF FIR :
1. The facts in brief are that on 18.05.2004, on the basis of secret information, accused persons namely Narender Raghav and Atul Mishra were apprehended at Loni Flyover, while they were coming in a Honda City Car. On checking the car, Police Officers of Special Cell State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:21:33 +0530 2 found 94 post envelops with stamp of Sunder Vihar Post Office from the said car. Thereafter, on disclosure of accused Narender, search was conducted at his residence and 12 more envelops were seized by the raiding team. During the investigation of the present case, accused Brij Kishore, who was posted as Postman at Post Office Sunder Vihar, PS Paschim Vihar, Delhi, was arrested. The present FIR was registered for offence U/s 379/411/34 IPC & 409 IPC.
2. As per investigation conducted, accused Brij Kishore was entrusted with the post/ letters seized from the co-accused persons and had handed over the same to co-accused persons namely Narender Raghav (declared proclaimed offender vide order dated 19.04.2005) and Atul Mishra (since expired and proceedings abated vide order dated 27.05.2014) without any authority or in violation of the rules. Hence, after investigation, chargesheet was filed qua accused persons namely Narender Raghav, Atul Mishra and Brij Kishore for offence U/s 379/411/34 IPC & 409 IPC.
3. Copy of the chargesheet was supplied to the accused person and charge was framed upon the accused Brij Kishore vide order dated 14.10.2017. Since accused Atul Mishra has expired, proceedings qua him were abated vide order dated 27.05.2014. Also, since accused Narender Raghav did not appear before the court, hence, he was declared proclaimed offender vide order dated 19.04.2005. Since accused Brij Kishore did not plead guilty, the matter proceeded further qua him.
State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI Date:
WALI 2024.07.15
18:21:42
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4. In support of its case against accused Brij Kishore, prosecution examined as many as eight witnesses.
5. The material witnesses with respect to the accused Brij Kishore are discussed below.
6. Ms. Usha Rani, Sub-Post Master (retd.), MBS Nagar, Delhi was examined as PW-1. She deposed that in the year 2004, she was posted as Postal Asstt. at Mail Branch, Post Office Sunder Vihar, and due to absence of Postal Assistant Rajinder, she was assigned additional work for about 10-15 days in the month of May. PW-1 further deposed that due to heavy work load, she used to take assistance of Postman.
7. At the request of Ld. APP, the witness was cross-examined as she was resling from her previous statement. PW-1 during her cross- examination denied the suggestion that the police recorded her statement Mark-X. She further denied the suggestion that she had kept the Dak/postage in the custody of postman Brij Kishore and was engaged in additional work on her seat. PW-1 further denied the suggestion that accused Brij Kishore used to take assistance of co- accused namely Narender Raghav and Atul Mishra. The witness denied the fact that her statement Mark X was recorded by the police. The witness was duly cross-examined by Ld. Counsel for accused.
8. Smt. Chandrawati then posted at Sunder Vihar Post Office was examined as PW-3. She deposed that while she was posted at Sunder State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:21:48 +0530 4 Vihar Post Office, the police officials had came to her office and handed over 106 dak patra/ letters and she received the same vide seizure memo Ex.PW2/A bearing her signature at point B. PW-3 stated that the said letters were stolen from Sunder Vihar Post office. At the request of Ld. APP, the witness was cross-examined as she was resling from her previous statement. PW-3 admitted that the stolen letters were bearing the stamp of the initial post office but not the stamps of Sunder Vihar Post office, as the said letters were stolen from Sunder Vihar Post Office before stamping. The witness admitted that she had asked accused Brij Kishore to assist Smt. Usha with postal work. The witness also admitted that the stolen letters were bearing the stamps of dt. 12.05.2004, 13.05.2004 and 14.05.2004.
9. The witness was cross-examined by Ld. Counsel for accused and stated that prior to the incident, she had not received any complaint against accused Brij Kishore or from any other person regarding not receiving any letter/ dak.
10. Sh. Dharambir Dabas then posted as a postman with the Indian Postal Department was examined as PW-5. The witness admitted working with accused Brij Kishore at Sunder Vihar Post office, however, he denied any knowledge about co-accused Narender Raghav and Atul Mishra and also denied seeing the said accused persons with accused Brij Kishore. At the request of Ld. APP, the witness was cross- examined as he was resling from his previous statement.
11. PW-5 denied the suggestion that he had seen co-accused Narender State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:21:54 +0530 5 and Atul alongwith accused Brij Kishore at tea stall and further denied the suggestion that during his service hour, he used to see co-accused Narender and Atul coming in a big car and was introduced by accused Brij Kishore as his relative. The witness was not cross-examined despite opportunity.
12. Sh. Ranbir Singh then working as postman at Sunder Vihar Post Office, was examined as PW-7. The witness admitted that accused Brij Kishore was also posted at Sunder Vihar Post Office as Postman and identified accused Brij Kishore before the Court. At the request of Ld. APP, the witness was cross-examined as he was resling from his previous statement. PW-7 denied the suggestion that police recorded his statement on 05.07.2004 and further denied the suggestion that he had seen accused Narender and Atul Mishra having tea with accused Brij Kishore. The witness was confronted with his statement Mark PW7/A and denied further suggestions put by the State. The witness was not cross-examined by the accused despite opportunity.
13. Sh. Devender Kumar, ACP CAW Cell, the Investigating Officer in the present case, was examined as PW-8. He deposed that on 18.05.2004, after receiving secret information, he alongwith the raiding party comprising of SI Dharam Chand, SI Satender, ASI Rakesh, ASI Baljit, HC Yashvir, ASI Om Prakash reached Loni Flyover. As per PW-8, one car bearing coming from the side of Loni was stopped. On search, accused Narender Kumar and Atul Mishra were found sitting in the car with two separate plastic bag/ katta. On checking the plastic State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:22:01 +0530 6 katta, the same was found carrying posts/ letters allegedly stolen from Sunder Vihar Post Office. PW-8 stated that the said total 94 posts/ letters were seized vide seizure memo Ex. PW2/A bearing his signature at point C. The witness proved the rukka/ tehrir exhibited as Ex. PW8/A, bearing his signature at point A. The witness stated that accused Atul Kumar and Narender vide disclosure statement Ex. PW2/F and Ex. PW2/G bearing his signature at piont C, had disclosed that the said posts were stolen from Sunder Vihar post office with the assistance of postman/ accused Brij Kishore. The witness deposed about recovery of 12 letters at the instance of accused Narender from his house vide seizure memo exhibited as PW2/H bearing his signature at point C. The witness further proved the arrest and personal search of accused Brij Kishore vide arrest Memo Ex. PW8/B and Ex. PW8/C bearing his signature at point A on both documents.
14. The witness during his cross-examination stated that he had not filed any document with respect to the posting of accused Brij Kishore at Sunder Vihar Post Office at the relevant time. The witness also admitted that no documentary evidence was collected during the investigation to show that the seized 106 dak/ letters were handed over to accused Brij Kishore. The witness further admitted that none of the officials of Sunder Vihar post office disclosed during the investigation that the aforesaid 106 daks/ letters were handed over to accused Brij Kishore.
15. The other witness examined in the present case were members of the raiding party. SI Rakesh Kumar was examined as PW-2 while SI State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:22:07 +0530 7 Dharam Chand was examined as PW-4 and SI Yashvir Singh was examined as PW-6. PW-2, PW-4 as well as PW-6 deposed that on 18.05.04, as members of the raiding party, they had stopped one car which was being driven by co-accused Narender, while accused Atul Mishra was sitting on the rear seat of the car. As deposed by all three witnesses, on checking the car, plastic kattas containg postal documents/ dak/ letters were found. PW-2 and PW-4 identified their signatures at point A and C respectively on the seizure memo Ex.
PW2/A. PW-2 and PW-4 further deposed about recovery of 12 postal envelops/ letters from the house of accused Narender vide seizure memo Ex. PW2/H bearing their signatures at point A and B respectively. Both witnesses also identified their signatures at Ex. PW2/B, Ex. PW/2/C, Ex. PW2/F and Ex. PW2/G. All three witness were not cross-examined by Ld. Counsel for accused Brij Kishore despite opportunity.
STATEMENT OF ACCUSED UNDER SECTION 294 CrPC
16. Statement of accused Brij Kishore u/s 294 CrPC was recorded on 05.02.2024 wherein he admitted the genuineness of FIR bearing No. 69/2004, PS Special Cell which is exhibited as Ex. A1
17. No other prosecution witness was examined and matter proceeded for recording of statement of accused.
State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell
Digitally
signed by
NABEELA
NABEELA WALI
WALI Date:
2024.07.15
18:22:13
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EXAMINATION OF ACCUSED U/S 313 CRPC
18. Thereafter, statement of accused u/s 313 CrPC was recorded wherein all the incriminating evidence was put to the accused distinctly, separately and specifically. Accused denied the allegations against him and stated that he is innocent and has been falsely implicated in the present case. He chose not to lead any evidence in his defence and matter proceeded for final arguments.
ARGUMENTS
19. Thereafter, matter proceeded for final arguments. Final arguments were heard on behalf of Ld. APP for State and the accused. It is argued by Ld. APP for the State that the prosecution has been able to prove its case beyond reasonable doubt from the testimony of the prosecution witness. On the other hand, it is submitted by the Ld. Defence Counsel that nothing has been placed on record by the prosecution in support of its case. It was argued that there is no evidence on record to show the entrustment of letters to accused Brij Kishore. It is further argued that no sanction has been placed on record, as accused was on duty at the time of alleged commission of offence. Ld. Counsel for the accused has also pointed out several contradictions in the testimony of prosecution witnesses.
FINDINGS
20. It is settled principle of law that in criminal proceedings, prosecution State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:22:19 +0530 9 has to prove its case beyond reasonable doubt. In the present case, the accused is charged for the offfences punishable under section 409 IPC & 120-B IPC. Before recording any finding on the facts, it is imperative to discuss the essential ingredients of each of the offences:-
Section 120 B IPC reads as under :-
120B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 409 in The Indian Penal Code, 1860
409. Criminal breach of trust by public servant, or by banker, merchant or agent.--
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, mer- chant, 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 to ten years, and shall also be liable to fine.
State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell
Digitally
signed by
NABEELA
NABEELA WALI
WALI Date:
2024.07.15
18:22:27
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21. The allegation against the accused is about the commission of offences under Sections 409/120B, Indian Penal Code. To be more precise, the act complained of is dishonest misappropriation or conversion of the goods by the accused, i.e. letters/ postal documents in the present case which he was holding in trust in his capacity as postman while being posted at Sunder Vihar Post Office. The necessary element of the offence of criminal breach of trust under Section 409, Indian Penal Code, is entrustment.
22. The material witness on the part of the prosecution to prove the said fact was PW-1. Although, PW-1 in her testimony has admitted taking the assistance of postmen posted at Sunder Vihar Post Office including accused Brij Kishore due to heavy work load, however, she denied the suggestion that she had entrusted the dak/ postage in the custody of accused/ postman Brij Kishore. No other witness has been examined by the prosecution to prove the factum of entrustment of stolen letters/ dak with accused Brij Kishore.
23. Moreover, it is an admitted fact that accused Brij Kishore was posted as Postman with the concerned post office and hence, in view of Section 21 of the Indian Penal Code, falls under the definition of public servant. As pointed out by Varadachariar J. in Hori Ram Vs. Emperor generally, in a case under Section 409, Indian Penal Code, "the official capacity is material only in connection with the 'entrustment' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of."
State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell
Digitally
signed by
NABEELA
NABEELA WALI
WALI Date:
2024.07.15
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Cases are conceivable where on their special facts it can be said that the act of criminal misappropriation or conversion complained of is inseparably intertwined with the performance of the official duty of the accused and therefore, sanction under Section 197(1) of the Code of Criminal Procedure for prosecution of the accused for an offence under Section 409, Indian Penal Code was necessary. Since, it is the allegation against the accused that he in his capacity as a postman, after being entrusted with the said dak/ letters dishonestly misappropriated the same, hence, sanction under Section 197 of CrPC, qua accused Brij Kishore was required to proceed with trial against him. As per testimony of PW8, there is no mention of obtaining sanction qua accused Brij Kishore and neither the same is placed on record by the prosecution.
24. So far as the charge u/s 120 B IPC is concerned, the same prescribes punishment for the offence of criminal conspiracy. The offence of 'criminal conspiracy' has been defined in Section 120A IPC which contemplates an agreement between two or more persons for doing an illegal act or for doing with illegal means an act which itself may not be illegal. The essence of the offence is an agreement to do an illegal act and such an agreement can be proved either by direct or circumstantial evidence or by both. The direct evidence of conspiracy is rarely available and the inferences are normally drawn from the acts of the parties in pursuance of a common purpose. Where the factum of conspiracy is sought to be inferred from the circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement to commit an State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:22:41 +0530 12 offence.
25. The material witnesses to prove the charge u/s 120B IPC against the accused, were PW-1, PW-5 and PW-7. While PW-1 in her testimony has denied the suggestion that accused Brij Kishore used to take the assistance of co-accused Narender Raghav and Atul Mishra or that both co-accused persons were known to accused Brij Kishore. PW-5 in his testimony has also stated that he had never seen accused Brij Kishore with accused Narender and Atul and had further denied the suggestion put by the state with respect to the accused Brij Kishore introducing co-accused Narender and Atul as his relative to PW-5. PW-7 also had denied the suggestion that he had seen the accused Narender and Atul with accused Brij Kishore or that accused Brij Kishore had introduced Narender and Atul as his known to PW-7. It is also pertinent to mention that all the abovesaid witness i.e. PW1, PW3, PW5 and PW7 had resiled from their previous statement made to the IO and were cross-examined by Ld. APP for the State. As far as other remaining witness are concerned, the same were member of the raiding party which had apprehended accused Narender and Atul with the stolen dak/ letters, however, apart from the disclosure statement, there is nothing deposed by the said witnesses to prove the offence of conspiracy qua accused Brij Kishore.
26. As per settled preposition of law, a statement recorded under Section 161 Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. The statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:22:48 +0530 13 omissions.
27. It is a settled proposition of criminal law that prosecution is required to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof in a criminal trial is on the prosecution and it never shifts on to the accused. In a criminal trial all allegations need to be proved beyond all reasonable doubts that an ordinary man can have. There can be no doubt whether the accused is guilty or not. Even if slightest doubt is observed, accused is entitled to this benefit of reasonable doubt in the prosecution story.
28. In Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, the Hon'ble Apex Court, laid down the five golden should be satisfied before a case based on circumstantial evidence against an accused can be said to be fully established:
(I) the circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) the facts so established should be consistent only with hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstance should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell Digitally signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:22:54 +0530 14 Conclusion
29. After appreciation of the testimonies of the witnesses as well as the material on record by the prosecution as well as the absence of sanction under Section 197 CrPC, I have no hesitation in holding that the prosecution has failed to proved the case against the accused for offences under Section 409 IPC and 120-B IPC. Accordingly, accused Brij Kishore S/o Sh. Daya Kishan is acquitted for the above mentioned offences.
30. Ordered Accordingly.
Announced in the open court Digitally on 15.07.2024 signed by NABEELA NABEELA WALI WALI Date:
2024.07.15 18:23:03 +0530 (NABEELA WALI) CJM, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI This judgment contains 14 pages and all the pages have been signed by me.Digitally signed by NABEELA
NABEELA WALI Date:
WALI 2024.07.15
18:23:10
+0530
(NABEELA WALI)
CJM, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
State Vs. Narender Raghav & Ors. FIR No. 69/2004 P.S. Special Cell