Delhi District Court
State vs Satybir Singh on 14 March, 2024
IN THE COURT OF SH. APOORV GUPTA, MM02,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. SATYABIR SINGH
FIR No. 130 / 2009
POLICE STATION TIMAR PUR
U/S 409 IPC
Date of institution of the case : 09.09.2009
Date of judgment reserved : 18.12.2023
CNR : DLCT020004582009
Date of commission of offence : 27.07.2009
Name of the complainant : Sh. U C Sharma
Name and address of accused : SATYABIR SINGH
S/o Late Sh. Shiv Dayal,
R/o WZ32/6/1, Palam Village,
Delhi.
Offence complained of : 409 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 14.03.2024
Final order : CONVICTION
JUDGMENT
CASE OF THE PROSECUTION:
1. The prosecution story in nutshell is that on 27.07.2009 at about 05.00 PM at ISSA/DRDO, Ministry of Defence, Metcafe House Complex, Delhi within jurisdiction of PS Timarpur accused in the capacity of public servant was entrusted one Tata Sumo with number 98B65554N and he committed breach of trust of the same and thereby committed an offence punishable under section 409 IPC.
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 1 / 20 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.03.14 15:21:55 +0530 COURT PROCEEDINGS :
2. After completion of investigation police report u/s 173 Cr.P.C was filed under Section 409 IPC. Cognizance was taken and accused was summoned.
Provisions of Section 207 Cr.P.C. were complied with after appearance of the accused.
CHARGE :
3. After hearing arguments on point of charge, charge for the offence under Section 409 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :
4. In order to substantiate its case, prosecution has examined sixteen witnesses.
5. PW1 Umesh Chand Sharma is the complainant. He has deposed that on 27.07.2009, accused / driver was on pick and drop duty of participants of the concerned course from RAC Guest House Timar Pur to ISSA Metcalfe House, Delhi54. At about 05.15 PM accused took the participants from ISSA to drop at the guest house and has to report back after dropping the participants but he did not report on that day. On 28.07.2009 when he came to the office he came to know from Sh. Devashish Dutta, Sr. Scientist that the accused did not report at duty alongwith the vehicle to pick participants from the guest house. On knowing about missing of the accused as well as vehicle (Tata Sumo) bearing no. 98B65554N, he tried to contact the accused on his mobile phone but in vain. He informed about the missing accused alongwith vehicle through proper channel. On this, his Director instructed STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 2 / 20 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.03.14 15:22:01 +0530 him to lodge FIR and he lodged the formal complaint Ex. PW1/A. He produced original file from the DRDO department containing the documents viz. the daily order part III Ex.P1A, letter No.15/34/94(P) 31317 dated 31.01.2006 Ex. P2, letter No.1073 to 1079 dated 03.02.1994 Ex. P4, CGHS card No.120473 of accused Ex.P5, sale certificate dated 28.03.1998 regarding purchase of the vehicle Tata Sumo Ex.P6, copy of the allotment of BA number dated 29.04.1998 Ex. P7, voucher dated 23.04.1998 Ex.P8 and requisition for transport of vehicle bearing No.98B 65554N dated 24.07.2009 Ex.P9. The same were seized vide seizure memo Ex. PW1/B. On 01.08.2009 accused was arrested vide arrest memo Ex. PW2/A and his personal search was conducted vide memo Ex. PW2/B. Key of the vehicle was seized vide seizure memo Ex. PW2/C. As the Independence day was coming close and vehicle was bearing Army number they got cautious and kept on searching the vehicle. After about a while brother of accused Bobby rang on the phone of Kamal Singh and told that the vehicle is near Kasola. The information was given to group head and he directed them to reach Kasola alongwith the security officer to identify the vehicle.
After reaching Kasola they identified the vehicle by matching the chasis number and BA number. Information about recovery of the Tata Sumo and its identification was given to senior officials and they alongwith IO came back leaving the vehicle under the custody of PS Kasola. The vehicle was found damaged from the left side, front glass was found broken and back side tyre was in torn condition. After making the vehicle roadworthy, it was taken to PS Timar Pur and same was deposited in the malkhana. Same was released on superdari and the superdarinama Ex. PW1/C was executed by H.V. Shir Niwas Rao. Disclosure statement of the accused is Ex. PW 1/D. was taken to this effect for the released. Tata Sumo was seized vide seizure memo Ex. PW2/D. Driver's car diary was seized vide seizure memo Ex. PW1/E and original driver's car diary is Ex.P12.
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 3 / 20
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.03.14
15:22:06 +0530
6. PW2 Kamal Singh, Tech. Officer C at DRDO has deposed that he was posted at DRDO as Tech. Officer C since 1989. On 28.07.2009 he was working as Security Officer at ISSA Building, Metcalfe House. Devashish Dutta who is posted at Scientist F in his organization organized a course with respect to System Analysis from 27.07.2009 and it was of one week duration. On 28.07.2009, Devaashish Dutta inquired from him that the participants have not reached and he found that the accused, who was the driver of vehicle Tata Sumo was assigned the duty of bringing the participants. The accused alongwith the vehicle was found missing. He arranged alternative vehicle and instructed driver S.C.Bardhan to bring the participants. He tried to contact accused but his mobile was found to be switched off. They waited for the accused till evening and after that Director, ISSA instructed them to lodge the FIR with respect to missing vehicle. He alongwith U C Sharma went to PS, Civil Lines and gave a written complaint. At about 11.00 PM on the same day SHO PS Civil Lines called him and told that accused is present at village Ismilepur, District Gurgaon and he is in drunken condition. On 29.07.2009, he along with U C Sharma went to village of accused where he was not found. They met one person namely Sanjay who informed that the accused was present in the village on 28.07.2009 and has probably left in the morning itself.
6.1 Thereafter they returned back and informed the director. Then they went to PS Civil Lines where they were asked to lodge the report at PS Timarpur as the vehicle has been taken from the area of PS, Timarpur. Thereafter they went to PS, TImarpur and FIR was lodged. On 01.08.2009 accused was apprehended. He along with U C Sharma went to PS, Timar Pur and identified the accused. Accused was arrested vide arrest memo Ex. PW2/A and his personal search was conducted vide memo Ex. PW2/B. Key of the vehicle was found from the pocket of accused and STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 4 / 20 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.03.14 15:22:12 +0530 same was seized vide seizure memo Ex. PW2/C. Disclosure statement of accused was recorded. On 26.08.2009 they were informed about the recovery of vehicle. He along with U C Sharma and IO ASI Ombir went to PS Kasola District Rewari, Haryana where they identified Tata Sumo and same was seized vide seizure memo Ex. PW2/D. Tyre of the right side was deflated and the dent was found on left side of the vehicle. BA number of the vehicle is 98B65554N.
7. PW3 HC Meda Lal has deposed that on 29.07.2009 at about 06.55 PM complaint Ex. PW1/A was presented to him, on the basis of which FIR Ex. PW3/A was registered. Endorsement Ex. PW3/B was made on rukka.
8. PW4 HC Baldev Singh joined the investigation with the investigating officer.
9. PW5 Sankalp produced the summoned record i.e order no. 4235 dated 24.08.2009 Ex. PW5/A for the release of the vehicle make Tata Sumo bearing registration number 98B65554N.
10. PW6 Ved Prakash has deposed that on 03.08.2009, he was informed by some children of his village that a Tata sumo is lying in the bushes i.e on the road side Ladhwas village at National Highway 8 for last 45 days. He met Mahavir Singh , Sarpanch and told him about it. He along with him went to the spot and saw the aforesaid vehicle in accidental condition stuck in the bushes. They went to the PS, Kasola and met ASI Surajbhan, who came to the spot and took out the vehicle from the bushes with the help of crane. The front bonnet of the vehicle, glass and right tyre STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 5 / 20 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.03.14 15:22:17 +0530 of the backside were damaged. ASI Surajbhan seized the vehicle vide seizure memo Ex. PW6/A.
11. PW7 HC Manish Kumar joined the investigation with ASI Surajbhan and has deposed on lines of ASI Surajbhan.
12. PW8 Ram Manohar Singh has deposed that on 07.09.2009, he was posted as Scientist 'F' (Group Director Admn.) at ISSA DRDO Metcalfe house Delhi. He had given permission/sanction u/s 197 Cr.P.C vide letter dated 04.09.2009 Ex. PW8/A to arrest accused.
13. PW9 Jagjeet Singh Sikka has deposed that on 01.02.2006 accused reported before him on transfer from National Saving Institute, ICCW building, New Delhi vide letter Ex. P2. He was taken on charge and was directed to report before the Administration branch for further administrative purposes. On 28.02.2006 he retired from the service after superannuation and has further stated that during the period from 01.02.2006 to 28.02.2006 nothing absurd or any misbehaviour on the part of the accused was reported to him.
14. PW10 SI Ombir Singh has deposed that on 29.07.09, further investigation of the case was marked to him. He visited the office of the accused and found the same to be closed. On the next day, he again visited the office of the accused i.e. Institute of System Study and Analysis, Unit of DRDO, Ministry of Defence, Metkalf house, Delhi and collected the address of the accused. He gave notice to the concerned person in the office to provide the documents of the accused like appointment letter and other relevant documents. Two persons from the office STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 6 / 20 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.03.14 15:22:33 +0530 Umesh Chand Sharma and Kamal Singh accompanied him to the residence of the accused. He searched the accused at his residence & residence of his relatives but he could not be found. Search was also made for the case property i.e. Army car (Tata Sumo). On 01.08.09, he alongwith Umesh Chand Sharma and Kamal Singh were coming from Gurgaon after searching the accused. At about 04:00 PM to 04:30 PM, Umesh Chand Sharma and Kamal Singh saw the accused standing at the bus stop in front of IP College. After interrogation accused was arrested vide memo Ex. PW2/A and his personal search was conducted vide memo Ex. PW2/B. His disclosure statement Ex. PW2/D was recorded. One key was recovered from the possession of the accused and he stated that the said key was of the car. Same was seized in white cloth pullanda with the seal of OVS vide seizure memo Ex. PW2/C. He handed over the seal to Umesh Chand and deposited the case property in Malkhana. Case property could not be recovered till 03.08.2009 and additional disclosure statement of accused Ex. PW4/A was recorded. On 20.08.09 one wireless message was received from Rewari that the car is in custody of PS, Rewari. He alongwith Kamal Singh and Umesh Chand went to PS Rewari and they identified the case property. Order was collected from district collector to release the car. After completion of formalities, he filed the chargesheet.
15. PW11 HC Reji K. P. joined the investigation with investigating officer. He is a witness to arrest of accused and other proceedings conducted by the investigating officer.
16. PW12 HC Pradeep Kumar produced register no. 19 in which bunch of 2 keys recovered under seizure memo Ex. PW2/C were deposited vide entry No. 3101 Ex. P11A. Further, as per DD No. 3115 dated 26.08.2009 IO/ASI Ombir Singh STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 7 / 20 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.03.14 15:22:41 +0530 deposited one Tata Sumo No. 98B65554N alongwith seizure memo vide entry Ex. PW12/A.
17. PW13 Chander Mohan Sharma has deposed that on 13.02.2006, he was in same department as Scientist E / Divisional Head (Administration) and after getting the approval from the Director concerned, he appointed the surplus staff i.e. accused as a driver in ISSA in terms of the order DOP&T Letter No.4/21/2003CSIII dt. 27Th July 2005 Ex.P1A.
18. PW14 SI Suraj Bhan has deposed that on 03.08.2009 an information was received by him from Sarpanch Mahavir Singh and Ved Prakash that 34 days prior to 03.08.2009, one Army Tata Sumo car bearing no. 58B65554 was lying in bushes near the Road in Village Ladobas Near Bhodla. He alongwith Ct. Manish Kumar, Surpanch Mahavir Singh and Ved Prakash reached at the spot and found one white colour Army Tata Sumo car bearing no. 58B65554 lying in the bushes in the damaged condition from front and rear sides. He seized the vehicle in DDR No.41 dated 03.08.2009 vide seizure memo Ex. PW6/A. He took the car through crane to PS Kasola and deposited the same. The information about the seizure of car was given to CRO concerned.
19. PW15 Rakesh Bharadwaj has deposed that stated that he does not remember anything about the present matter. He was cross examined by Ld. APP for the State. He denied the suggestion that he clicked the photographs of Vehicle no. 98B65554N and also denied that he provided the photographs along with the negatives to the investigating officer.
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 8 / 20
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.03.14
15:22:46 +0530
20. PW16 ASI/Tech. Devender Kumar has deposed that on 10.09.2009 he mechanically inspected Tata Sumo bearing registration number ↑98B65554 and prepared report Ex. PW16/A. During mechanical inspection, fresh damages were found on left front body fender damage, front wind screen glass broken from left side, stepney wheel tyre torn out and vehicle was fit for road test.
ADMISSION/DENIAL OF DOCUMENTS :
21. Accused, in his statement under Section 294 Cr.P.C did not dispute the genuineness and correctness of joint statement of SV Raghavan and SG Ghume Ex. AD1. In view thereof, evidence of witness namely SV Raghavan was dispensed with.
STATEMENT / DEFENCE OF THE ACCUSED :
22. Accused in his statement recorded under Section 313 Cr.P.C admitted that :
(I) On 27.07.2009 he was on pick and drop duty of participants of the concerned course from RAC Guest House, Timarpur to ISSA Metacalfe House.
(II) His police custody remand was obtained for the purpose of searching car but the same was not found till 03.08.2009 and his disclosure statement Ex. PW4/A was recorded. (III) On 01.02.2006 he reported before PW9 Jagjeet Singh Sikka on being transferred from National Saving Institute, ICCW building, New Delhi vide letter Ex. P2. He was taken on STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 9 / 20 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.03.14 15:22:52 +0530 charge and was directed to report the administration branch for further administrative duties.
(IV) On 13.02.2006 he was appointed by PW13 Chander Mohan Sharma as a driver is ISSA in terms of letter no. 4/21/2003CSIII dated 27.06.2005 Ex. P1A. (V) Daily order partIII is Ex. P1A, letter no. 15/34/94 (P) 313 17 dated 31.01.2006 is Ex. P2, letter no. 1073 to 1079 dated 03.02.1994 is Ex. P4, your CGHS card no. 120473 is Ex. P5, sale certificate dated 28.03.1998 regarding purchase of vehicle Tata Sumo is Ex. P6, copy of allotment of BA number dated 29.04.1998 is Ex. P7, received voucher dated 23.04.1998 is Ex.
P8 and requisition for transport of vehicle bearing no. 98B65554 dated 24.07.2009 is Ex. P9.
(VI) However, he pleaded innocence and has stated that due to quarrel, on the ground of fixing his duty hours, PW1 Umesh Chand Sharma and PW2 Kamal Singh have falsely implicated him. On 27.07.2009, he dropped the participant at DRDO Guest House, Civil Lines at 05.15 PM and parked the vehicle. He handed over the key to PW2 Kamal Singh at MT Office, DRDO. He left his house and had informed PW1 and PW2 that he would be on half day leave on next day as his wife was not feeling well. He was arrested on 28.07.2009 from the office.
23. I have heard the submissions of Ld. Counsel for the accused and Ld. APP for State and carefully gone through the material on record.
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 10 / 20
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.03.14
15:22:58 +0530
ANALYSIS AND FINDINGS :
24. The accused has been charged for the offence under Section 409 IPC. Section 409 IPC prescribes punishment for criminal breach of trust by public servant, or by banker, merchant or agent. However, section 409 IPC does not define criminal breach of trust. Criminal breach of trust is defined U/s 405 IPC.
25. It would be appropriate to reproduce sections 405 & 409 of IPC, which are as follows :
"405. Criminal breach of trust.Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.
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, merchant, 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. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 11 / 20 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.03.14 15:23:03 +0530
26. In order to prove the offences punishable under section 408 IPC, the prosecution has to prove beyond reasonable doubt, the following mandatory ingredients, viz., i. That there should be an entrustment by one person to another of the property (movable or immovable), or with any dominion over property;
ii. that such entrustment must be in the trust;
iii. that there must have been a misappropriation or conversion to his own use by the person who received the property in trust; iv. that such conversion or retention of the property must be against or in violation of any direction, or law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust, and v. that the person who received the property in trust has received it being a public servant or banker, merchant, factor, broker, attorney or agent.
27. Section 405 IPC uses the word "entrusted". However, IPC does not define this term but the ambit of this term has now been settled by judicial pronouncements of superior courts. Hon'ble Apex Court in case of Som Nath Puri Vs. State of Rajasthan (1972) 1 SCC 630 has observed, inter alia, as under :
"7. .... Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust. The words 'in any manner' in the context are significant. The section does not provide that the entrustment of property should STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 12 / 20 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.03.14 15:23:08 +0530 be by someone or the amount recieved must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to, deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner..."
28. Hon'ble Apex Court in case titled as Chelloor Mankkal Narayan Ittiravi Nambudiri Vs. State of TravancoreCochin (1952) 2 SCC 392 observed as under:
"23. .... As laid down in Section 385, Cochin Penal Code, (corresponding to Section 405, Indian Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit..."
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 13 / 20 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.03.14 15:23:14 +0530
29. Hon'ble High Court of Bombay in State Vs. Dahyalal Dalpatram 1959 SCC Online Bom 1 held as under:
"11. ... But evidently S. 405 of the Penal Code, 1860 does not contemplate that the property in respect of which an offence of criminal breach of trust may be committed must be property which belonged to the complainant. Provided there is entrustment of property, it matters little whether the complainant on whose behalf the property is entrusted is the owner thereof or not...."
30. Thus, entrustment implies custody or management of property for some purpose but it does not imply conferring of any propitiatory right and the person entrusting the property need not be the owner of said property.
31. Another ingredient of the offence defined U/s 405 IPC is that the accused had dishonestly misappropriated/converted/used/disposed property in question. The mens rea required for the offence defined U/s 405 IPC is dishonest intention. The word "dishonest" has been defined U/s 24 of IPC as :
"24. "Dishonestly".Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"."
31.1 Thus, an accused is said to have committed offence under section 405 IPC if he had caused substantial or appreciable loss to the person by whom entrustment of property was made or gain to the accused.
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 14 / 20
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.03.14
15:23:19 +0530
32. Regarding burden of proof with respect to an offence defined U/s 405 IPC it was held by the Hon'ble Supreme Court of India in State of HP Vs. Karanvir (2006) 5 SCC 381 as under:
"23. .... The actual manner of misappropriation, it is well settled, is not required to be proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the respondent had failed to produce any material for this purpose, the prosecution should not suffer therefore.."
33. In criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. On a bare perusal of the above offence, it can be culled out that the prosecution has to prove that the accused was entrusted with vehicle in question, while working as servant of complainant and he had dishonestly misappropriated and converted it to his own use. Thus, it is essential to prove the entrustment and dishonest misappropriation if vehicle in question by the accused.
34. Now, I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence both oral as well as documentary on record satisfy the legal ingredients in question or not.
i. First Ingredient : entrustment by one person to another of the property (movable or immovable), or with any dominion over property; and ii. Second Ingredient : such entrustment must be in the trust;
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 15 / 20
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.03.14
15:23:25 +0530
34.1. As per the discussion made above, entrustment implies custody or possession of the property in question and it need not mean that ownership of the property has to be transferred. Furthermore, the person entrusting the property need not be the owner of property in question.
34.2. To prove the entrustment of property in question, to the accused, prosecution has examined PW1 and PW2. It has come in testimony of PW1 Umesh Chand Sharma that on 27.07.2009 accused / driver was on pick and drop duty of participants of the concerned course from RAC Guest House Timar Pur to ISSA Metcalfe House, Delhi54. At about 05.15 PM accused took the participants from ISSA to drop at the guest house and had to report back after dropping the participants but the accused did not report on that day. PW2 Kamal Singh has deposed that he was posted at DRDO as Tech. Officer C since 1989. On 28.07.2009 he was working as Security Officer at ISSA Building, Metcalfe House. Devashish Dutta who is posted at Scientist F in his organization organized a course with respect to System Analysis from 27.07.2009 and it was of one week duration. On 28.07.2009, Devaashish Dutta inquired from him that the participants have not reached and he found that the accused, who was the driver of vehicle Tata Sumo was assigned the duty of bringing the participants. The accused alongwith the vehicle was found missing.
34.3. Hon'ble Supreme Court of India in Mohd Firoz Vs. State of Madhya Pradesh (2022) 7 SCC 443 held that no conviction could be based on the statement of the accused recorded under section 313 of the Cr.P.C. and the prosecution has to prove the guilt of the accused by leading independent and cogent evidence, nonetheless when the accused makes inculpatory and exculpatory statements, the STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 16 / 20 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.03.14 15:23:31 +0530 inculpatory part of the statement can be taken aid of to lend credence to the case of prosecution. However, if the prosecution evidence does not inspire confidence to sustain the conviction of accused the inculpatory part of his statement under S. 313 Cr.P.C cannot be made the sole basis of conviction.
34.4. Accused in his statement recorded under S. 313 Cr.P.C had accepted that on 13.02.2006 he was appointed by PW13 Chander Mohan Sharma as a driver is ISSA in terms of letter no. 4/21/2003CSIII dated 27.06.2005 Ex. P1A. He further admitted that on 27.07.2009 he was on pick and drop duty of participants of the concerned course from RAC Guest House, Timarpur to ISSA Metacalfe House. Thus, from the evidence of prosecution witnesses PW1 and PW2 as well as on the basis of inculpatory part of statement of accused recorded U/s 313 Cr.P.C the first and second ingredients stands proved beyond all reasonable doubts.
iii. Third Ingredient : there must have been a misappropriation or conversion to his own use by the person who received the property in trust.
34.5. Coming to the third ingredient in light of State of HP Vs. Karanvir (2006) 5 SCC 381 wherein it was held that once entrustment is proved, it is for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the respondent had failed to produce any material for this purpose, the prosecution should not suffer. Thus, once entrustment has been proved, which has been done in present case by the prosecution, the burden of proof now shifts upon the accused to discharge it.
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 17 / 20
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.03.14
15:23:41 +0530
34.6. Hon'ble Apex Court in Ram Gopal S/o Mansharam Vs. State of Madhya Pradesh 2023 SCC OnLine SC 158 held that it is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him.
34.7 In present case the accused has taken the plea that after dropping the participants at DRDO Guest House, Civil Lines at 05.15 PM, he parked the vehicle and handed over the key to Kamal Singh at MT Office, DRDO. He then left and informed PW1 and PW2 that he would be on half day leave as his wife was unwell. However, he has not led any evidence in this regard. Moreover, this plea is not fortified by recovery of vehicle in damaged condition from village Kasola, Distt. Rewari.
iv. Fourth Ingredient : such conversion or retention of the property must be against or in violation of any direction, or law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust;
34.8. From the testimony of PW1 and PW2 it is manifestly clear that accused took the car in question on 27.07.2009 as he was on pick and drop duty of participants of the concerned course from RAC Guest House Timar Pur to ISSA Metcalfe House, Delhi54. At about 05.15 PM accused took the participants from ISSA to drop at the guest house and has to report back after dropping the participants but he did not report on that day. His plea that he had parked the vehicle in the office STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 18 / 20 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.03.14 15:23:47 +0530 and handed over the key to Kamal Singh is belied by the testimony of totally independent witness viz. PW6 Ved Prakash who has deposed that on being informed by some children of his village Ladhuwas, Kasola, Distt. Rewari, Haryana that a Tata Sumo is lying in bushes at National Highway for last 45 days, he informed Sarpanch Mahavir Singh. Both of them went to the spot and found the vehicle in accidental condition. Thereafter they went to PS, Kasola and met ASI Surajbhan. They alongwith ASI Surajbhan came to the spot. Vehicle was taken out from the bushes with the help of crane. Vehicle was damaged. It was seized by ASI Surajbhan vide seizure memo Ex. PW6/A. His testimony found substantial corroboration from PW7 HC Manish Kumar and PW14 SI Suraj Bhan. Accused has not alleged any enmity, illwill or grudge against any him. Moreover, nothing material could be elicited from their crossexamination which may cast any dent in their version. Thus, it stands proved that although it was obligation on the part of accused to report back after dropping the participants but he did not do so. Rather, in violation of the direction he took the government vehicle which was ultimately recovered in accidental condition from village Kasola, Distt. Rewari.
v. Fifth Ingredient : the person who received the property in trust has received it being a public servant or banker, merchant, factor, broker, attorney or agent;
34.9. This ingredient is itself admitted by the accused in his statement recorded under section 313 Cr.P.C wherein he has admitted that on 01.02.2006 you reported before PW9 Jagjeet Singh Sikka on being transferred from National Saving Institute, ICCW building, New Delhi vide letter Ex. P2. You were taken on charge and was directed to report the administration branch for further administrative duties.
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 19 / 20
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.03.14
15:23:55 +0530
Further on 13.02.2006 he was appointed by PW13 Chander Mohan Sharma as a driver is ISSA in terms of letter no. 4/21/2003CSIII dated 27.06.2005 Ex. P1A. He being a public servant received the vehicle in trust that after dropping the participants he will report back and will deposit the vehicle in office. Since he breached the trust, sanction u/s 197 Cr.P.C was given by PW8 Ram Manohar Singh for his arrest. As such, this ingredient also stands proved.
35. To recapitulate the above discussion, the prosecution was required to prove the ingredients of the offences beyond reasonable doubt. The testimony of the prosecution witnesses inspires confidence and there is no reason to disbelieve the same. The plea taken by accused that he has been falsely implicated by PW1 on the ground of fixing of duty hours does not inspire confidence and in fact is belied by the ample evidence available on record.
36. Resultantly, I hold that prosecution has been able to establish its case beyond reasonable doubt. The accused Satyabir Singh is found guilty and is convicted for offence under section 409 of the Indian Penal Code.
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.03.14
15:24:01 +0530
ANNOUNCED IN OPEN COURT (Apoorv Gupta)
ON 14th MARCH, 2024 MM02, Central District
Tis Hazari Courts/14.03.2024
This judgment consists of 20 pages and each page of this judgment is digitally signed by me.
APOORV Digitally signed by
APOORV GUPTA
(ApoorvDate:
GUPTA Gupta)
2024.03.14
15:24:05 +0530
MM02, Central District
Tis Hazari Courts/14.03.2024
STATE VS. SATYABIR SINGH FIR NO. 130 / 2009 PS TIMARPUR PAGE NO. 20 / 20