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State vs . Shimbhu Sha @ Shiv Kumar & Anr on 17 May, 2019

     IN THE COURT OF SH. DEEPAK KUMAR ­ II, METROPOLITAN
          MAGISTRATE­06, DWARKA COURTS, NEW DELHI.

FIR No. 60/14.
PS. Dwarka North.
U/s. 408/482/34 IPC
State Vs. Shimbhu Sha @ Shiv Kumar & Anr
                            JUDGMENT

A.       SL. NO. OF THE CASE               :   422078/16.
B.       DATE OF INSTITUTION               :   04/05/2018.
C.       DATE OF OFFENCE                   :   October­November, 2014
D.       NAME OF THE                       :   Sh. Mukesh Mann
         COMPLAINANT                           S/o Sh. Bal Kishan

E.       NAME OF THE                       :   1) Shimbhu Sha @ Shiv
                                               Kumar S/o Sh.Vasu Dev
                                               Sha R/o Mohalla Daya
                                               Sagar, Ward No. 13, Golden
                                               Jubilee Park, District
                                               Madhubani, Bihar.

                                               2) Vijay Yadav S/o Sh. Ram
                                               Ashish Yadav R/o Village
                                               Bodali, PS Arera, District
                                               Madhubani, Bihar.
F.       OFFENCE
         COMPLAINED OF                     :   U/s 408/482/34 IPC
G.       PLEA OF ACCUSED                   :   Pleaded not guilty.
H.       FINAL ORDER                       :   Acquittal.
I.      DATE OF SUCH ORDER                 :   17/05/2019.




FIR No. 60/14.
PS. Dwarka North.
U/s. 408/482/34 IPC

State Vs. Shimbhu Sha @ Shiv Kumar & Anr No. 422078/17 Page No. 1/5 Brief Statement of Reasons for Decision

1. Briefly stated the facts of the case, as alleged by the prosecution and as stated in the charge sheet are that in the month of October­November, 2014 accused persons namely Shimbhu Sha @ Shiv Kumar and Vijay Yadav were the employees of New Mann Travels Pvt Ltd, having its registered office at Flat no. 5, Second Floor, Pocket­6, Sector­12, Dwarka, New Delhi within the jurisdiction PS Dwarka North and were working as drivers. They were entrusted with the vehicle no. HR­ 55S­6366 by the complainant Mukesh Mann and both the accused persons dishonestly, without the consent and knowledge of the complainant took the same to Madhubani, Bihar in violation of terms and condition of the entrustment and did not returned the same to the complainant. On the complaint of the complainant the present case FIR was registered under section 408 IPC and the investigation was carried out. During the course of investigation the vehicle in question was recovered from Madhubani, Bihar and the same was having a fake registration plate i.e. UP­17T­5615. Both the accused persons were arrested and section 482 IPC was added, statement of witness/s were recorded, site plan was prepared and other necessary steps were taken towards the investigation. After culmination of investigation charge­sheet in the present matter was filed under section 408/411/482/34 IPC and cognizance was taken by this court.

FIR No. 60/14.

PS. Dwarka North.

U/s. 408/482/34 IPC State Vs. Shimbhu Sha @ Shiv Kumar & Anr No. 422078/17 Page No. 2/5

2. Thereafter, the accused persons were summoned by the learned predecessor of this court for facing trial. In compliance of Section 207 Cr.P.C., the copy of the chargeheet and the documents annexed therewith were supplied to the accused. Prima facie charge under section 408 IPC was made out against the accused Shimbhu Sha @ Shiv Kumar and charge under section 408/482 IPC was made out against accused Vijay Yadav. Accordingly, on 25.01.2017 the charges was framed against the accused persons. The accused persons pleaded not guilty and claimed trial to the said charge and the case proceeded for prosecution evidence.

3. In the instant case, the prosecution has not examined any prosecution witness as PW/ complainant Mukesh Mann and PW/superdar Arvind Kumar remained untraceable despite they being directed to be served through DCP concerned but the same did not yielded any fruitful results. The remaining witnesses were either police officials or formal witnesses, who were admittedly not the eye­witness to the incident nor they have entrusted the vehicle in question to the accused persons and thus, their testimonies were not likely to substantiate the culpability of the accused. Therefore, no fruitful purpose would have been served by examining the said remaining witnesses.

FIR No. 60/14.

PS. Dwarka North.

U/s. 408/482/34 IPC State Vs. Shimbhu Sha @ Shiv Kumar & Anr No. 422078/17 Page No. 3/5 Therefore, PE was closed. As there was nothing incriminating evidence against the accused persons, therefore, recording of statement of accused persons under section 313 CrPC was dispensed with and DE was closed and final arguments were heard.

4. I have heard Ld. APP for the state and Ld. counsel for the accused persons and have also carefully perused the case file. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.

5. In order to prove the guilt of the accused persons under section 408/482/34 IPC the prosecution is required to prove that the accused persons were entrusted with the property and they committed the criminal breach of trust in respect of the same. Moreover, the prosecution was also required to prove that accused Vijay Yadav had used fake registration plate on the vehicle in question.

6. In the present case, the witnesses who could have FIR No. 60/14.

PS. Dwarka North.

U/s. 408/482/34 IPC State Vs. Shimbhu Sha @ Shiv Kumar & Anr No. 422078/17 Page No. 4/5 proved the factum of the entrustment of the vehicle in question, criminal breach of trust in respect of the same and use of fake registration plate on the same have remained untraceable and furthermore, they were the vital/material/crucial witnesses for proving the prosecution version. The non examination of those witnesses have proved fatal to the prosecution case as in absence of his indispensable testimony, the prosecution case cannot be substantiated. Therefore, the prosecution version as regards the complaint of the complainant Mukesh Mann has remained unproved.

7. There is not even an iota of incriminating evidence against the accused to fix their liability under section 482/408/34 IPC. The prosecution has failed to prove its case by leading convincing and cogent evidence and thus have failed to discharge the onus placed upon it. Hence, the accused persons are entitled to benefit of doubt.

8. In the light of the above discussion, the accused persons namely Shimbhu Sha @ Shiv Kumar and Vijay Yadav are acquitted of the offences for which they were charged.

                                                              DEEPAK           Digitally signed by DEEPAK
                                                                               KUMAR

                                                              KUMAR            Date: 2019.05.17 16:32:29
                                                                               +0530


ANNOUNCED IN OPEN COURT                                    (DEEPAK KUMAR­II)
Today i.e. 17/05/2019                                        MM­06/DWK/ND



FIR No. 60/14.
PS. Dwarka North.
U/s. 408/482/34 IPC

State Vs. Shimbhu Sha @ Shiv Kumar & Anr No. 422078/17 Page No. 5/5