Delhi District Court
State vs : Mahender Singh & Anr. on 12 November, 2014
IN THE COURT OF SH. SUDHANSHU KAUSHIK : ACMM-01 :
CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
State Vs : Mahender Singh & Anr.
FIR No. : 34/1997
U/s : 407/468/471 IPC
PS : Nabi Karim (Crime)
Unique Identification No. 02401R0014442005
Date of Institution: 16.07.1998
Date of Judgment reserved on: 10.11.2014
Date of Judgment: 12.11.2014
Brief details of the case
A. Sl. No. of the case 000518/P
B. Offence complained of
or proved U/s 407/471/34 IPC IPC
C. Date of Offence Between 10.01.97 to 20.01.97
D. Name of the complainant Sh. Naresh Sharma
Regional Manager
Ritu Road Lines Pvt. Ltd.,
7530, Galaxy Apartment, Tel
Mil Gali, Ram Nagar,
Paharganj, New Delhi
E. Name of the accused (1) Mahender Singh @ Manjeet (PO)
S/o Sh. Bhale Ram,
R/o Vill. Khatkar, PS Uchana,
Distt. Jind (Haryana)
(2) Satyawan Singh
S/o Sh. Ranjit Singh,
R/o Village Bamnauli,
PS Bahadurgarh Sadar,
Distt. Rohtak (Haryana)
F. Plea of the accused Pleaded not guilty
G. Final order Convicted under Section 411 IPC
H. Date of Order 12.11.2014
FIR No.34/1997 State Vs Mahender Singh & Anr. Page 1 of 18
Judgment
On the accusation of acting in furtherance of their common
intention and committing criminal breach of trust in respect of a consignment
containing 360 bags of PVC which were entrusted to them as carrier, accused
Mahinder and Satyawan Singh were sent up to face trial for committing
offences punishable under Section 407 IPC read with Section 34 IPC. Apart
from this, it was also alleged that both the accused fraudulently and dishonestly
prepared forged documents of truck bearing registration No.HR-12-1224 on
which the consignment was loaded and used those forged documents as
genuine. Charges under Section 468/471 IPC read with Section 34 IPC were
also pressed against them.
Brief facts as unfolded during the trial
2. The present judgment has been passed qua the accused Satyawan as
co-accused Mahinder @ Manjeet has been declared ' Proclaimed Offender' .
3. The case of prosecution as revealed from the charge-sheet is that
PW-1 Naresh Sharma (hereinafter referred to as ' complainant' ) was the
Regional Manager of Ritu Roadlines Pvt. Ltd. (hereinafter referred to as
' company' ) having its office at 7350, Tel Mil Marg, Ram Nagar, Paharganj,
New Delhi. The branch office of the company at Suraj (Gujrat) hired a truck
bearing registration No.HR-12-1224 from Hissar-Bhiwani Roadlines, Kadodara
for transporting a consignment of 360 bags of PVC weighing around 9 metric
tonnes from Reliance Industries Ltd., Hazira to its office at Paharganj, New
FIR No.34/1997 State Vs Mahender Singh & Anr. Page 2 of 18
Delhi. On 26.12.1996, Sh. Ravinder Sharma (PW-15), Loading Clerk of the
company, accompanied the driver (accused Mahinder) of the truck to the office
of Reliance Industries Ltd., Hazira from where the consignment was loaded and
the truck was dispatched. When the truck did not reach its destination on the
scheduled time, the complainant got suspicious and lodged a report with the
police. On the said complaint, present FIR bearing No.34/1997 under Section
407/468/471IPC was registered at Police Station Nabi Karim and investigation was assigned to SI K.L.Yadav (PW-11) who was posted at Anti Robbery Cell, Crime Branch. Documents vide which the consignment was loading on the truck including the consignment note and invoices were seized. Efforts were made to trace the stolen truck and misappropriated consignment but no clue was found.
4. The prosecution' s case proceeds further that on 20.01.1997, SI K.L.Yadav received information from Sat Bhagwan Sharma that the stolen truck can be found parked at Mahipal Pur Road, near Vasant Kunj Apartments. After reducing this information in writing vide DD No.6, SI K.L.Yadav constituted a team and proceeded towards pre-disclosed spot where Sat Bhagwan Sharma met the police officials and pointed towards a parked truck. In the meantime, Mahinder Singh came out of a nearby sweet shop and police officials arrested him while he was about to start his vehicle. During interrogation, Mahinder made disclosure about his involvement and took the police party to the house of Satyawan located at Bamnauli Village, PS FIR No.34/1997 State Vs Mahender Singh & Anr. Page 3 of 18 Bahadurgarh, Distt. Rohtak (Haryana) from where 360 bags of misappropriated consignment were recovered. The recovered bags were deposited at the Malkhana of Police Station Nabi Karim. One bag was retained as sample while the remaining bags were released on superdari. Statement of witnesses were recorded and necessary documentation was done. It was revealed during investigation that the actual registration number of the truck was DNG-0844 but in order to deceive the complainant, both the accused changed the registration number to HR-12-1224 by preparing forged documents and super- embossing a different chassis number. Investigation qua the aspect of forgery and preparation of forged documents was carried out and after conclusion of investigation, charge-sheet was put to the court.
5. Copies of the charge-sheet were supplied to both the accused and charges under Section 407/471 IPC read with Section 34 IPC were framed against them to which they pleaded not guilty and claimed trial. Mahinder Singh remained absent during trial and vide order dated 24.04.2009, he was declared a Proclaimed Offender. Trial proceeded and concluded qua accused Satyawan.
Witnesses examined
6. Fifteen prosecution witnesses were examined.
Witnesses from the company PW-1 Naresh Sharma (Complainant/Regional Manager, Ritu Road Lines Pvt. Ltd.) mentioned about the entrustment part. He stated that the truck FIR No.34/1997 State Vs Mahender Singh & Anr. Page 4 of 18 containing 360 bags of PVC weighing around 9 metric tonnes was entrusted to Manjeet Singh @ Mahinder. He mentioned that documents of the truck depicted that Devender Singh was the owner while Mahinder was the driver of the truck. He mentioned about lodging complaint with the police.
PW-4 Om Prakash Sharma (Director, Ritu Road Lines Pvt. Ltd.) supported the version of Naresh Sharma by deposing on same lines.
PW-16 Ravinder Sharma (Employee of Ritu Road Lines Pvt. Ltd.) supported the prosecution' s case mentioning that consignment was entrusted to Manjeet @ Mahinder. He mentioned that he accompanied Mahinder to the factory of Reliance Industries Ltd. at Hazira from where 360 bags of PVC were loaded on the truck and at that time, an associate of this accused also accompanied them.
Witnesses of forged documents PW-3 Major Singh (Licensing Clerk, SDM Office, Rohtak) mentioned that according to the records of Transport Authority, a Padmini Car was awarded the registration number HR-12-1224.
PW-5 Dr. Rajender Singh (Principal Scientific Officer, CFSL) mentioned that he examined the chassis number of the truck bearing registration number HR-12-1224 and found that it has been tampered. The report submitted by him is Ex.PW-5/A. PW-7 A.K.Gupta (Director-Incharge - Retd., FSL) mentioned that the handwriting of Manjeet @ Mahinder was found on the forged documents. FIR No.34/1997 State Vs Mahender Singh & Anr. Page 5 of 18
PW-10 Jagram (Assistant, State Transport Department, Chandigarh) deposed that the permit of truck was forged.
PW-15 Sampat Naik (MLO, Headquarters, Delhi) brought the record of truck bearing Registration No. DNG-0844 to demonstrate that the said vehicle was purchased by Satyawan Singh. He stated that the registration number was allotted by the transport authority of Rajpur Road. Police Witnesses PW-2 Ct. Nagender Kumar (Witness of arrest of Manjeet @ Mahinder) stated that after arrest, Mahinder disclosed the actual registration number of his truck as DNG-0844. He stated that the forged documents of the truck were seized in his presence.
PW-6 HC Narender Singh (Duty Officer) mentioned about registration of FIR. Copy of FIR is Ex.PW-6/A. PW-8 HC Darshan Kumar (Witness of arrest) stated that Satyawan surrendered at Police Station Crime Branch, R.K.Puram and he was arrested by IO/SI K.L.Yadav vide arrest memo Ex.PW-8/A. PW-14 HC Rajender Singh (Witness to the seizure memo of forged documents) stated that the documents were seized in his presence.
PW-11 Insp. K.L.Yadav (Investigating Officer) justified the investigation carried out by him. He gave a detailed account of the recovery made from the house of Satyawan. He mentioned that it was revealed during investigation that the ration card at the address of House No.56, Gali Bamnauli FIR No.34/1997 State Vs Mahender Singh & Anr. Page 6 of 18 has been issued in the name of Satyawan.
PW-9 ASI (Retd.) Karan Singh (Recovery witness) mentioned that on 23.01.1997, Mahinder @ Manjeet took the police party to H.No.56 at Village Bamnauli from where 360 misappropriated bags were recovered and at that time, complainant was also accompanying the police party. He mentioned that IO/SI K.L.Yadav requested public persons to join recovery proceedings but no one agreed.
Witnesses examined to establish the address of Satyawan PW-12 Ramesh Rathi (Retd. District Food Supply Officer) failed to produce the original record of ration card and mentioned that the record has been weeded out.
PW-13 Murti Devi (Public witness to establish the address of Satyawan) did not support the prosecution' s case. She stated that although Satyawan belongs to her native village but she does not know the house number where he used to reside.
7. Statement of Satyawan was recorded under Section 313 Cr PC wherein he denied all the incriminating evidence. He stated that the consignment was not entrusted to him. He admitted that he was the owner of truck bearing registration No. DNG-0844 and Mahinder @ Manjeet was the driver of his truck. It appears from his statement that he tried to shift the entire blame on Mahinder @ Manjeet about the forging of documents. He admitted that he was residing at House No.56, Village Bamnauli but denied recovery of FIR No.34/1997 State Vs Mahender Singh & Anr. Page 7 of 18 PVC bags from his house. No defence witness was examined.
Arguments
8. I have heard the rival arguments advanced at bar by Ld. APP for State and Ld. Defence Counsel.
9. Ld APP has argued that prosecution' s case has been established to the hilt. He contended that there is overwhelming evidence on record to establish that both the accused committed criminal breach of trust in respect of consignment which was entrusted to them. He mentioned that testimony of witnesses from the concerned transport authorities has established that both the accused acted in further of their common intention and prepared forged documents of the truck. He stated that Satyawan has made a hopeless attempt to save himself by pleading ignorance about the entire transaction. He mentioned that recovery stands duly proved as the testimony of all the recovery witnesses is coherent.
10. On the other hand, Ld defence counsel argued that there are material contradictions and discrepancies in the testimony of recovery witnesses. It has been argued by him that there is no evidence to establish that consignment was entrusted to Satyawan or that Mahinder @ Manjeet was acting in connivance with this accused. He stated that purported recovery is doubtful as no independent witness was joined. Counsel has argued that testimony of police officials is not reliable. He contended that the material on record is not sufficient to prove charges against the Satyawan and he should be FIR No.34/1997 State Vs Mahender Singh & Anr. Page 8 of 18 acquitted.
11. I have perused the record in the light of respective arguments.
Brief reasons for the decision
12. Charges under Section 407/471 IPC read with Section 34 IPC were framed against accused Satyawan. In order to establish charge under Section 407 IPC, the prosecution has to establish that accused was entrusted with property as carrier and while being so entrusted, he committed criminal breach of trust in respect of that property. For establishing the criminal breach of trust, it is sacrosanct to demonstrate that accused was entrusted with the property or any dominion over the property and he dishonestly misappropriated or converted to his own use that property in violation of any express or implied legal contract. On the other hand, for establishing a charge under Section 471 IPC, prosecution has to establish that accused fraudulently or dishonestly used a forged document as genuine knowing or having reasons to believe that the same is forged. Now, let us peruse the record to see whether these charges have been established.
13. In order to establish the entrustment part, prosecution relied upon the testimony of witnesses from the company. Three witnesses from the company were examined i.e. PW-1 Naresh Sharma, PW-4 Om Prakash Sharma and PW-16 Ravinder Sharma. Perusal of their testimony shows that none of them mentioned that the consignment was entrusted to Satyawan. Naresh Sharma (PW-1) stated that a truck bearing No.HR-12-1224 was hired by his FIR No.34/1997 State Vs Mahender Singh & Anr. Page 9 of 18 office for transporting consignment from the factor of Reliance Industries Ltd. at Hazira to the office of company at Paharganj, New Delhi. He mentioned about various documents which were prepared for sending the consignment including the consignment note and invoices. He stated that Mahinder Singh @ Manjeet was the driver of the truck on which the consignment was loaded and as per the challan dated 26.12.1996 (Ex.PW-1/B), one Devender Singh was the owner of the said truck. He did not mention the name of Satyawan. Similarly, Om Prakash Sharma (PW-4) also remained silent on this aspect. The testimony of Ravinder Sharma (PW-16) was very crucial to establish the allegation that consignment was entrusted to both the accused. He was employee of the company who accompanied the driver to the factory of Reliance Industries Ltd. at Hazira. He stated that on the instructions of Manager of the company, he accompanied the driver Manjeet Singh @ Mahinder to the factory of Reliance Industries Ltd. and the consignment was dispatched from the factory. He stated that at that time, another person was accompanying Manjeet @ Mahinder but mentioned in his cross examination that he can not say whether Satyawan was the same person.
14. Thus, the deposition of the witnesses from the company does not, in any manner, establish that the consignment was entrusted to the Satyawan. It may be that Manjeet Singh @ Mahinder was acting under the instructions of Satyawan as he was the owner of the truck but there is no concrete evidence to arrive at this finding. In order to bring home charge with the aid of Section 34 FIR No.34/1997 State Vs Mahender Singh & Anr. Page 10 of 18 of IPC pertaining to joint liability, it is essential to establish the participation of accused in the alleged offence. Admittedly, no charge under Section 120B IPC was framed. The circumstances in a case, when taken together on their face value, should indicate meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, committed by illegal means. A few bits here and a few bits there on which prosecution relies, can not be held adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of the conspiracy hatched. The circumstances on which reliance can be placed for the purpose of drawing an inference should be prior in point of time then the actual commission of offence in furtherance of the alleged conspiracy. Evidence shows that although, the misappropriated consignment was subsequently recovered from the house of Satyawan but this circumstance, in itself, is not sufficient to arrive at a finding that Satyawan entered into a criminal conspiracy with his driver for committing criminal breach of trust in respect of consignment which was entrusted by the company. The circumstances proved by the evidence raise a very strong suspicion about the involvement of accused but the evidence falls shot of establishing criminal conspiracy. Moreover, as observed earlier, no charge under Section 120B IPC was framed and in such a situation, it would not be fair to invoke the said provision of joint liability for convicting the accused. In case, a charge of criminal conspiracy would have FIR No.34/1997 State Vs Mahender Singh & Anr. Page 11 of 18 been framed, then, the accused would have got an opportunity to defend himself during trial but since no charge of criminal conspiracy was framed, therefore, it would not be fair to invoke the said principle at this final stage. Thus, charge under Section 407/34 IPC has not been proved.
15. The charge under Section 471 IPC qua Satyawan has also not been established. The evidence has established that forged documents of the truck were recovered from the possession of Mahinder @ Manjeet. Ct. Nagender Kumar (PW-2) mentioned that the forged documents recovered from the possession of Mahinder were seized by the Investigating Officer. The deposition of Major Singh (PW-3), Licensing Clerk from the transport authority goes on to show that a Padmini Car was registered in the authority under the registration number of HR-12-1224 which was depicted in the forged documents as the registration number of the truck. Dr. Rajender Singh (PW-5), Principal Scientific Officer examined the chassis number of the truck and gave a finding in his report (Ex.PW-5/A) that the numbers have been tampered. Sh. A.K.Gupta (PW-7), Director, FSL mentioned that handwriting of Manjeet @ Mahinder was found on the forged documents of truck while Jagram (PW-10), Assistant from State Transport Department mentioned that permit of the truck was forged. Sampat Naik (PW-15), MLO (Hq.), Delhi deposed that the truck bearing registration No.DNG-0844 was purchased by Satyawan. In fact, the accused himself admitted in his statement recorded under Section 313 Cr.P.C that he was owner of the truck. However, this evidence does not demonstrate FIR No.34/1997 State Vs Mahender Singh & Anr. Page 12 of 18 that Satyawan either forged the documents of the truck or knowingly used the forged documents as genuine. The evidence, at best, depicts that the driver Manjeet Singh @ Mahinder might have prepared those documents and used forged documents as genuine but nothing beyond that. Thus, charge under Section 471 IPC has not been established qua Satyawan. However, there is sufficient material on record to establish that Satyawan committed an offence punishable under Section 411 IPC.
16. Prosecution has been successful in establishing recovery of the misappropriated consignment from the house of Satyawan. The testimony of recovery witnesses establishes that misappropriated bags of PVC were recovered from the house of Satyawan. Three recovery witnesses were examined i.e. Naresh Sharma (PW-1), ASI Karan Singh (PW-9) and Insp. K.L.Yadav (PW-11). These recovery witnesses have deposed in sync mentioning that misappropriated bags were recovered from the house of Satyawan. Complainant Naresh Sharma (PW-1) mentioned that on 23.01.1997, he joined the police party and Mahinder @ Manjeet took them to House No.56, Village Bamlauli, Distt. Rohtak (Haryana) from where 360 misappropriated bags containing PVC were recovered. He stated that the recovered bags were seized vide seizure memo (Ex.PW-1/D) and identified his signatures on the seizure memo. He mentioned that one sample bag was retained while the remaining bags were deposited at the Malkhana. He identified the sample bag which was produced from the Malkhana as Ex.P1. The testimony of this FIR No.34/1997 State Vs Mahender Singh & Anr. Page 13 of 18 witness finds support and corroboration from the deposition of other witnesses. ASI Karan Singh (PW-9) has also mentioned that recovery was made from the house bearing No.56, Vill. Bamlauni, Rohtak (Haryana). Similarly, Insp. K.L.Yadav (PW-11) has also given same account of recovery mentioning that 360 bags of PVC were recovered from the house of Satyawan. The police witnesses have categorically deposed about the presence of complainant mentioning that he was accompanying the police party. Insp. K.L.Yadav mentioned that complainant identified the case property at the house of accused and the recovered bags were seized by him. The testimony of these recovery witnesses leaves no scope for doubt that the bags which were loaded on the truck and misappropriated by Mahinder @ Manjeet were recovered from the house of Satyawan.
17. Ld. Defence Counsel has assailed the testimony of recovery witnesses mentioning that their testimony is not reliable. He argued that there are contradictions in the testimony of recovery witnesses. He pointed out that ASI Karan Singh stated in his cross examination that no person was found present at the house when the police party reached there while Insp. K.L.Yadav mentioned that ' pardanashi' women were present at the house when the police party reached there. I have perused the cross examination of these recovery witnesses but I do not find any material contradictions in their testimony. Although, there are some minor contradictions in the testimony of police witnesses but these contradictions are not fatal. Some minor contradictions are FIR No.34/1997 State Vs Mahender Singh & Anr. Page 14 of 18 bound to appear in the testimony of witnesses. It would be unfair to discard their testimony merely because of these minor contradictions. Both the police officials have given a similar account of recovery and deposed on same lines in respect of recovery of misappropriated bags. Complainant has also supported recovery and corroborated the testimony of police witnesses.
18. It has been the main line of argument of defence that no public witness was joined in recovery and on account of this reason, the recovery is doubtful. The said argument is not convincing. I am of the considered opinion that the testimony of police personnel cannot be brushed aside merely because no public persons have been joined in investigation. The provisions as provided under Section 100 (4) Cr. PC are only directory and failure to comply with the said provisions will not invariably be fatal for the case of the prosecution. It has been held by the Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 that " The scope of these two sections (section 100 and 165 of Code of Criminal Procedure) have been examined in a number of cases. In Wasan Singh v. State (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. State of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent person from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In Radha Kishan v. State of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would, however, cast a duty upon the Court to FIR No.34/1997 State Vs Mahender Singh & Anr. Page 15 of 18 scrutinize the evidence regarding the search very carefully. In Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44 it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions.......
.....This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
19. On applying the abovesaid provisions to the present matter, it is evident that the recovery of misappropriated bags has been proved. There is no reason to doubt the testimony of recovery witnesses merely because they are police personnel. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311 :
" ........The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down....."
20. Even if, it is presumed that police witnesses have deposed falsely, still, there is no reason to doubt the testimony of complainant Naresh Sharma (PW-1). There is no reason as to why this witness would falsely depose about the recovery or falsely implicate the accused in the present case. Although, the FIR No.34/1997 State Vs Mahender Singh & Anr. Page 16 of 18 prudence demands that independent witness should be joined in recovery proceedings but it does not mean that in every case, the testimony of recovery witnesses should be doubted merely because no independent public witness has been joined. What is required or called for is that the police officials should make genuine and sincere efforts to join public witness at the time of recovery. Both the police witnesses have mentioned that efforts were made to join public witness from the locality but nobody was willing to join recovery proceedings. In such circumstances, the argument of defence that the testimony of police officials should be discarded merely because there is no independent public witness of recovery does not hold ground.
21. Record shows that Satyawan admitted in his statement recorded under Section 313 Cr.P.C that he is residing of H.No.56, Village Bamlauni, Rohtak (Haryana). Complainant as well as recovery witnesses have specifically mentioned the address from where the recovery was effected. The same address as mentioned by these recovery witnesses has been recorded in the seizure memo which was prepared at the spot. The PVC bags recovered from the house of accused were identified by the complainant. Once the prosecution has established that misappropriated bags were recovered from the house of Satyawan, then, the onus of explaining its possession shifted upon him. It was for Satyawan to explain as to how he gained the possession of misappropriated bags which were recovered from his house. Instead of tendering an explanation, he adopted a mode of complete denial which does not come to his rescue. The FIR No.34/1997 State Vs Mahender Singh & Anr. Page 17 of 18 circumstances proved on record leaves no scope for doubt that Satyawan had every reason to believe that 360 PVC bags, which were recovered from his possession, were stolen property. The identity of case property has already been established. I am of the considered opinion that evidence on record establishes that Satyawan committed an offence punishable under Section 411 IPC by dishonestly receiving and retaining the possession of misappropriated PVC bags of the company knowing or having reasons to believe that the same constitutes a stolen property. Accused Satyawan stands acquitted of charges under Section 407/471 IPC read with Section 34 IPC but convicted for committing offence punishable under Section 411 IPC.
Be heard separately on the point of sentence.
Announced in open Court (SUDHANSHU KAUSHIK)
on 12.11.2014 ACMM-01, Central District,
Tis Hazari Courts, Delhi
It is certified that this judgment contains Eighteen (18) pages and each page bears my signatures.
(SUDHANSHU KAUSHIK) ACMM-01, Central District, Tis Hazari Courts, Delhi FIR No.34/1997 State Vs Mahender Singh & Anr. Page 18 of 18