Delhi District Court
State vs . Shambhu on 16 August, 2014
IN THE COURT OF SH. PANKAJ ARORA, MM01,WEST DISTRICT, TIS
HAZARI COURT, DELHI
STATE Vs. SHAMBHU
FIR No. 526/2000
PS: PUNJABI BAGH
U/S: 407 IPC
ID No. :
02401R0188102000
Date of commission of offence : 24.06.2000
Date of institution of the case : 16.11.2000
Name of the complainant : SI Om Parkash
Name of accused and address : Shambu S/o Mr. Ganga Ram, R/o Village
Sujat Nagar, PS Pirag Pur, District Napur,
Rajasthan.
Offence complained of or proved : U/s 407 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 16.08.2014.
J U D G M E N T
1 The case of the prosecution in brief is that on 24.06.2000, accused Shambhu was entrusted with total 12,000 ltr. of F. oil in the Tanker No. DL1G2811 and were entrusted on behalf of the complainant Vijay Singh and the owner of the Truck Rajbeer Singh to be taken to Hissar, Haryana. However, the accused instead of carrying the oil to the said place misappropriated 2400 ltr. of oil for his own use while employed as driver of the truck of State Vs. Shambhu Page No. 1 of 8 Rajbeer Singh. On the basis of the statement of one Vijay Singh, the present FIR came to be registered. After completion of necessary formalities, charge sheet was filed in this Court. Cognizance of the offence was taken. The accused was summoned. Charge under Section 407 of IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
2 The prosecution examined 4 witnesses in support of its case, which are as follows:
1) Mr. Rajbir Singh is the owner of misaroriated truck who was examined as PW1. He deposed that he was running a transport business. He further deposed that on 23.06.2000, Vijay Kumar hired his tanker bearing registration no. DL1G2811 and accused Shambu was working at the said Tanker as a driver. He further deposed that Shambu came to the Delhi from Hisar after loading furnace oil. He further deposed that in the night Shambhu reported him that the said tanker has been stolen through telephone. He further deposed that he rang on 100 number and police official came at Madipur and arrested accused Shambhu for enquiry. He further deposed that he informed complainant Vijay Kumar regarding the alleged incident and Vijay Kumar lodged an FIR. He further deposed that later on, he got released the said vehicle by the order of Court which is Ex. PW1/A. During his crossexamination, he stated that he had not seen who has stolen the furnace oil but said tanker was being driven by Shambhu.
2) Mr. Vijay Singh was examined as PW2. He deposed that he was running a transport business at F311, Madipur. He further deposed that on 23.06.2000, he entered State Vs. Shambhu Page No. 2 of 8 an oral agreement with owner of Haryana Oil Transport Company namely Rajbir Singh for the purpose of hiring the oil tanker for delivery of furnish oil from Hissar to Dharu Hera, Hero Honda Motor Ltd. He further deposed that he did not recollect tanker no. due to the lapse of time. He further deposed that the said tanker was being driven by accused Shambu. He further deposed that later on, he came to know that said oil tanker did not reach at Dharu hera after loading furnished oil from Hissar. He further deposed that he made contact with the owner of said tanker Sh. Rajbir Singh and he told him that said tanker has been stolen. He further deposed that after 78 days, vehicle was recovered from the area of Mundka in empty condition. He further deposed that next day from the date of incident, he had lodged a complaint in PS regarding misappropriation of furnished oil, same is Ex. PW2/A. He further deposed that he had also handed over a bilty which is in the name of Sandeep Oil Carriers to Rajbir Singh regarding loading of furnished oil from Hissar and delivery towards destination, same is Ex. PW2/B. He further deposed that the purpose of bilty is if delivery of the oil has been completed then receiving authority returned this bilty to the driver Sambhu after duly attestation. He further deposed that sad bilty was not attested by purchase officer from Hero Honda as the delivery of furnished oil has not been completed by the accused and said furnished oil never delivered to receiving hero Honda Company. He further deposed that he did not know whether personal search of accused Sambhu was conducted in his presence or not. He further deposed that after seeing personal search memo, witness correctly identified his signature and same is Ex. PW3/C. He further deposed that alleged tanker was not recovered in his presence. During his cross State Vs. Shambhu Page No. 3 of 8 examination by Ld. APP for the State, he admitted the suggestion that he had entrusted question furnished oil to the owner Rajbir for delilvery the same to the destination. He stated that after completion of delivery the charges were to be paid by him to Sh. Rajbir Singh. He further stated that when delivery was snot effected to consignee then he made an inquiry to Rajbir Singh and he told him that said tanker has been stolen and he was searching the vehicle. During his crossexamination by Ld. Counsel for the accused, he stated that he had written agreement with Hero Honda Company for delivery of oil. He further stated that copy of agreement was not taken in possession by the police. He denied the suggestion that he had no agreement with Hero Honda for delivery of oil. He stated that whenever bilty is delivered to the owner/driver for loading the consignment,the signature of driver is obtained at bilty at the time of handing over bilty to him. He admitted the suggestion that Ex. PW2/B did not bear signature of driver at point X. He further admitted the suggestion that same bilty Ex. PW2/B did not bear his signature. He voluntarily stated that the same bears the signature of booking Clerk/Munsi. He stated that he was not present at the place of consider when the vehicle was loaded. He further deposed that he did not know who was the driver of said vehicle when the vehicle was loaded at consignor to IOC Hissar. During his crossexamination by Ld. APP for the State, he admitted that he had entrusted question furnished oil to the owner Rajbir Singh for delivery the same to the destination. He stated that when delivery was not effected to consignee then he made an inquiry to Rajbir Singh and he told him that said tanker has State Vs. Shambhu Page No. 4 of 8 been stolen and he was searching the vehicle. During his crossexamination by Ld. Counsel for the accused, he stated that he had written agreement with Hero Honda company for delivery of oil. He further stated the copy of agreement was not taken in possession by the police. He denied the suggestion that he had no agreement with Hero Honda for delivery of oil. He stated that whenever builty is deliver to the owner/driver for loading the consignment. He further stated that signature of driver is obtained at buility at the time of handing over builty to him. He admitted the suggestion that Ex. PW2/B did not bear signature of driver at point X. He further admitted the suggestion same builty Ex. PW2/B did not bear his signature. He voluntarily stated that the same was signature of booking clerk/Munsi. He stated that he was not present at the place of consignor when the vehicle was loaded. He further stated that he did not know who was the driver of said vehicle when the vehicle was loaded at consignor to IOC Hissar. He further stated that he has seen accused only in the Court.
3) HC Sukh Pal was examined as PW3. He deposed that on 24.06.2000, he was posted at PP Madipur PS Punjabi Bagh as a Ct. He further deposed that he was present in the PP Madipur along with Vijay. He further deposed that IO HC Purshotam handed over to him a rukka for registration of FIR. He further deposed that he took same to the PS Punjabi Bagh and got FIR registered and came back at PP along with copy of FIR and original rukka and handed over to IO. He further dpeosed that they went to the house of accused Sambhu and accused Sambhu was arrested by the IO vide arrest memo Ex. PW3/A, on the identification of Vijay. He further deposed that during interrogation, accused disclosed that he had parked said tanker bearing registration no. State Vs. Shambhu Page No. 5 of 8 DL1G2811 at Punjabi Bagh TPT Centre after stealing oil. He further deposed that the IO recorded disclosure statement vide memo Ex. PW3/B. He further deposed that they went to the TPT Centre Punjabi Bagh and said tanker was recovered from there at the instance of accused Sambhu and same was taken in police possession by the IO vide seizure memo Ex. PW3/C. He further deposed that oil was measured by Vijay and found tanker was containing 12 barrel less quantity of said oil. He further deposed that accused Sambhu also told them that he had sold said oil after stealing from the tanker to a person namely Ramesh near Mundka Railway Station. He further deposed that thereafter, they went to near Mundka Railway Station at a vacant plot on the pointing out of accused and IO prepared pointing out memo Ex. PW3/D but Ramesh was not found there. He further deposed that they returned to PS and case property was deposited in Malkhana. During his crossexamination, he stated that license of the accused might be taken by the IO in police possession. He further stated that seizure memo of license of accused was also prepared by IO. He further stated that he did not remember whether his signatures were obtained on seizure memo of D/L or not. He further stated that IO had taken document of alleged tanker in police possession but he could not tell description of said document. He further stated that after recovery containing oil was measured by the help of scale. He further deposed that the scale was taken into possession by the IO. He further deposed that he did not know whether marking of scale was photographed by the IO or not. He further deposed that he did not know whether the marking on the scale was noted by the IO or not as it was seen by the IO.
4) ASI Baldev Singh was the duty officer who recorded & identified the present FIR State Vs. Shambhu Page No. 6 of 8 No. 526/2000 registered by her which is Ex. PW4/A. He also identified her endorsement on the rukka which is Ex. PW4/B. The witness was not crossexamined despite having given the opportunity.
3 Thereafter thestatement of accused U/s 313 of Cr.P.C. was recorded, in which all the incriminating facts were put to the accused persons . Accused stated that he was innocent and he has falsely been implicated in the present case as he was employee of Mr. Vijay and working as servant on his tent house shop. He further stated that he was not having any driving license from any license authority of India. He further stated that he did not know how to drive any type of vehicle. Accused persons opted to lead evidence in defence.
4 This Court has heard the arguments and perused the record.
5 It is observed that PW1 Rajbir Singh and PW2 Vijay Singh are main witnesses examined by the prosecution. PW1 has stated in his cross examination that he had not seen the person who had stolen the furnace oil. PW2, in his examination in chief, had stated that he had entered into an oral agreement for transportation with the owner of Haryana Oil Transport Company namely Rajbir Singh. He never stated that he had any agreement with the driver of Haryana Oil Transport Company. In his cross examination by Ld. APP for the State, PW2 admitted the suggestion that he had entrusted questioned Furnace Oil to the owner Rajbir Singh for delivery to the destination.He further stated the owner of tanker told him that said tanker has been stolen and he was searching the vehicle. He also claimed that he has not seen the driver of the tanker in question..This shows that testimony of PW2 is only hearsay and thus cannot be State Vs. Shambhu Page No. 7 of 8 substantive piece of evidence. Further, it is observed that the prosecution has relied upon one document Ex. PW2/B i.e. Bilti, to show the entrustment made to the accused. However, it is observed that the said document does not bear any signature of the driver of the vehicle to whom the entrustment is made which as er the version of PW2 should be there.. In these circumstances, the prosecution has failed to prove the factum of entrustment which is an essential ingredient of section 407 IPC. It is also observed that as per the case of prosecution accused is the driver of the tanker which is a commercial vehicle in which the oil has been misappropriated. However, no driving licence has been seized by the IO. No plausible explanation is given regarding the same. Remaining witnesses who were got examined by the prosecution were only corroborative or formal in nature.
6 It is well settled that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused namely Shambhu is hereby acquitted from the charges punishable U/s 407 of IPC.
Announced in the open Court, On 16th, August, 2014.
(Pankaj Arora) MM01 (West)/Delhi 16.08.2014 State Vs. Shambhu Page No. 8 of 8 FIR No. 526/2000 PS: P. Punjabi 16.08.2014 Present: Ld. APP for the State.
Accused namely Shambhu in person with Ld. Counsel.
Vide separate judgment dictated in the open court, the accused Shambu is hereby hereby acquitted for offence punishable U/s 407 of IPC.
Bail bond U/s 407 of IPC furnished by the accused Shambhu and same is perused & accepted.
File be consigned to the Record Room.
(Pankaj Arora) MM01,West, THC, Delhi 16.08.2014 State Vs. Shambhu Page No. 9 of 8 State Vs. Shambhu Page No. 10 of 8