Delhi District Court
State vs Khyali Ram And Others on 7 June, 2025
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI
FIR No.: 14/2008
PS: Uttam Nagar
U/s: 285/286/407/408/6379/34 IPC
Case no. 1455/2019
State
Vs.
1. Khyali Ram S/o Sh. Lala Ram
2. Jai Singh S/o SH. Jorby Lal (proceedings abated)
and
3. Joginder Singh S/o Sh. Jagdish Singh
..... Accused persons
S. No. of the case : 1455/2019
The date of offence : 11.01.2008
The name of the complainant : Sh. Rajesh Kumar
The offence complained : 285/286/407/408/6379/34 IPC
The plea of the accused : Pleaded not guilty
The date of order : 09.06.2025
The final order : Acquittal of accused persons Khyali
Ram and Joginder for the offences u/s
379/407/408/285 IPC.
Acquittal of accused Joginder for the
offence u/s 286 IPC.
Conviction of accused Khyali Ram for
the offence u/s 286 IPC.
State Vs. Khyali Ram and Ors. Page No. 1 of 22
FIR No. 14/2008
Uttam Nagar
Brief Facts
1. It is the case of the prosecution that on 11.01.2008 at about 11-11.15 am, the complainant i.e. Rajesh Kumar, Editor of News India Channel, along with his team of 4 members were passing through Centre School, Gate No 3, near Hastal Village and saw one TSR parked near the gate of the school. They notices the accused persons were filling empty LPG Cylinders with the help of pipe with already filled LPG Cylinders. A total of four accused were involved out of which two fled from the spot. The complainant made PCR call and police officials came at the spot. Thereafter, an FIR bearing no. 14/2008 u/s 285/286 IPC was registered at PS Uttam Nagar against the accused persons namely Khyali Ram, Jai Singh, Ashok and Joginder. Investigation of the case was marked to ASI Ram Chander, who filed the chargesheet.
2. On completion of investigation, a chargesheet u/s 285/286/407/408/34 IPC was filed against the accused persons. After taking cognizance of the offence, the accused persons were summoned to face trial.
3. On their appearance, a copy of chargesheet along with documents were supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC').
4. During the course of trial accused Ashok stopped appearing and proceedings under Section 82 CRPC was initiated against him and vide order dated 13.02.2014 accused Ashok was declared proclaimed person.
5. On finding prima facie case against the remaining accused persons i.e. Khyali Ram, Jai Singh and Joginder, charges under section 285/286/407/408/379/34 IPC were framed, to which they pleaded not guilty and claimed trial.
State Vs. Khyali Ram and Ors. Page No. 2 of 22 FIR No. 14/2008Uttam Nagar
6. The accused Jai Singh expired during the course of trial and proceedings against accused Jai Singh stood abated vide order dated 29.10.2021. Thus, the present matter proceeded against accused Khyali Ram and Joginder.
EVIDENCE
7. A total of 7 witnesses were incorporated in the list of witnesses by the prosecution. A total of 4 witnesses were examined i.e. PW 1, PW 2, PW4 and PW 5. No witness under the head of PW 3 was examined. The accused persons admitted FIR No 14/2008 PS Uttam Nagar along with certificate under Section 65B IEA Ex P1 (Colly). Accordingly, witness at serial No 5 was dropped from the list of witness. Summon to witness Bhupinder also came back with the remarks that he has expired.
8. Rajesh Kumar was examined as PW 1. In his examination in chief stated that he is Editor in News India channel. In the year 2008 also he was working as Editor in News India channel. On 11.01.2008, at about 11.00 -11.15 AM, he along with his team of 4 members including Ram Kumar, Sardar Bhupender Singh and one camera man, were passing through Centre School, Gate no. 3, near Hastsal village, they saw one TSR parked near the gate of school. They noticed that the accused persons (who were delivery man of Nirmal Gas Agency) were filling the empty LPG cylinders with the help of the pipe with already filled LPG cylinders. The pipe with the help of which the empty cylinders were filled is called Bansari. He recorded the video and clicked the photographs of the accused persons doing the aforesaid activities. He made PCR call. Police officials came at the spot. They pointed out towards the accused persons and also narrated the entire incident to police officials. There were four accused State Vs. Khyali Ram and Ors. Page No. 3 of 22 FIR No. 14/2008 Uttam Nagar persons indulged in the activity. On seeing the police officials, two out of four fled away from the spot and the police apprehended two persons at the spot. He handed over the video and photographs of the incident to police. He gave the complaint of the incident in his handwriting to police officials. The same is Ex. PW1/A bearing his signature at point A. The police official seized the said TSR (tempo), three bicycles, the pipe for filling the gas and 30 LPG cylinders from the spot in his presence. The seizure memo of gas cylinder, nozels, TSR and three bicycles are now Ex. PW1/B, Ex. PW1/C, Ex. PW1/D, Ex. PW1/E respectively. All bearing his signature at point A. The photographs of the cylinders which were being filled at the time of incident are Ex. P1 (colly.), seven in numbers. (Correctly identified.) (Objected by Ld. Counsel for accused persons on the mode of exhibition of photographs.) He does not remember the face of accused persons as the matter is old. The incident had taken in the year 2008. He also do not remember the registration number of TSR. (At this stage, Ld. Sub. APP seeks the permission of court to ask the leading question to the witness as the witness is not able to identify the accused and to disclose the registration number of TSR. Heard. Allowed.) (At this stage, the witness is shown the accused persons by point out towards them and asked whether the persons standing in front of him are the same persons who were involved in the incident. The witness states that one of the persons standing is Khyaliram (correctly identified by the witness). However, he does not remember the face of another accused namely Jogender standing in front of him.) He denied that he is deliberately not identifying the accused Jogender. He denied that he is won over by accused Jogender. He affirmed that the registration number of TSR is DDL-3531 of yellow colour. (At this stage, witness is shown photograph placed on record in respect of two bicycles and one TSR (both with negatives). Same is State Vs. Khyali Ram and Ors. Page No. 4 of 22 FIR No. 14/2008 Uttam Nagar correctly identified by the witness. Photograph of two bicycles are now Ex. Y1(colly) (total 4 photographs in negative) and photograph of TSR is Ex. Y2 (colly) (total 3 photographs in negative).)
9. In his cross-examination PW 1 stated that he has not prepared or submitted the abovesaid photographs i.e. Ex. Y1(colly) and Ex. Y2 (colly). Today he has first time seen the Ex. Y1 and Ex. Y2. He cannot tell who had prepared the abovesaid photographs and negatives. He denied that he is not competent person to exhibit the same. He himself clicked 8-10 photographs of the bicycle and he have also prepared one video of the said bicycles and submitted the same to the IO after 2- 3 days from the date of incident against receipt. Today he did not bring the said receipt. He does not remember today if he handed over certificate u/s 65B of IEA to the IO in support of his video and photographs. He is a law graduate and he have registered himself as an advocate with Bar Council of Delhi in the year 2022. Prior to that, he was running his own news channel and newspaper which were registered with concerned authorities as he had all the essential documents for registration which were required regarding the license. He was registered with Registrar Newspaper of India. Weight and measurement dept. came at the spot but he do not remember the time. He himself checked the weight of the cylinder by lifting with his hand and the said cylinders were found filled up with the gas. The total number of cylinders was 30. Vol., some of the cylinders were empty. 5-6 cylinders were empty. The cylinders belonged to accused persons. The agency owner was not at the spot at any point of time in his presence. He do not know if agency owner ever made any complaint of theft of gas or any customer ever made any complaint regarding the theft of gas. He does not know whether any gas receipt were recovered from the possession of accused persons. (At this stage, receipts placed on record were shown to the witness. Witness State Vs. Khyali Ram and Ors. Page No. 5 of 22 FIR No. 14/2008 Uttam Nagar states that he has no knowledge whether the same were recovered from the possession of accused or not.) He did not get any journalism course or degree from any institute or university (vol. it is not compulsory for reporting work). There were four persons at the spot, two left the spot and two remained at the spot. He do not know the accused persons (Khayali Ram and Jogender) present in the court today, had left the spot or remained at the spot. He cannot say whether the accused persons present in the court today were the same person from whom 30 cylinders, 3 cycles and TSR were recovered at the spot. He denied that false and fabricated case was prepared by him in collusion with his team in order to extort money from gas agency owner. He denied that he is deposing falsely.
10. Ram Kumar was examined as PW 2. In his examination in chief, he stated that he is Reporter in News India channel. In the year 2008 also, he was working as Reporter in News India channel. On 11.01.2008, at about 11.00 -11.15 AM, he alongwith his team of 4 members including Ram Kumar, Sardar Bhupender Singh and one camera man, were passing through Centre School, Gate no. 3, near Hastsal village, they saw one TSR parked near the gate of school. They stopped their vehicle and noticed that the accused persons (who were delivery man of Nirmal Gas Agency) were filling the empty LPG cylinders with the help of the pipe illegally with already filled LPG cylinders. After that their colleague Rajesh Kumar inquired from accused persons about the activity being carried on. He also made PCR call. They recorded the video and clicked the photographs of the accused persons doing the aforesaid activities. Police officials came at the spot. They pointed out towards the accused persons and also narrated the entire incident to police officials. There were four accused persons indulged in the activity. On seeing the police officials, two out of four State Vs. Khyali Ram and Ors. Page No. 6 of 22 FIR No. 14/2008 Uttam Nagar fled away from the spot and the police apprehended two persons at the spot. They handed over the video and photographs of the incident to police. Sh. Rajesh Kumar gave the complaint of the incident in his handwriting to police officials. The same is already Ex. PW1/A bearing his signature at point B. The police official seized the said TSR (tempo), three bicycles, the pipe for filling the gas and 30 LPG cylinders from the spot in his presence. The seizure memo of gas cylinder, nozels, TSR and three bicycles are already Ex. PW1/B, Ex. PW1/C, Ex. PW1/D, Ex. PW1/E respectively. All bearing his signature at point B. The TSR seized by the police was of yellow colour. The photographs of the cylinders which were being filled at the time of incident are already Ex. P1 (colly.), seven in numbers. (Correctly identified.) (Objected by Ld. Counsel for accused persons on the mode of exhibition of photographs.) He does not remember the face of accused persons as the matter is old. The incident had taken in the year 2008. He also do not remember the registration number of TSR. (At this stage, Ld. Sub. APP seeks the permission of court to ask the leading question to the witness as the witness is not able to identify the accused and to disclose the registration number of TSR. Heard. Allowed.) (At this stage, the witness is shown the accused persons by point out towards them and asked whether the persons standing in front of him are the same persons who were involved in the incident. The witness states that he cannot recognise the face of any of accused persons standing in court today.) He denied that he is deliberately not identifying the accused persons. He denied that he is won over by accused persons. He affirmed that the registration number of TSR is DDL-3531 of yellow colour. (At this stage, witness is shown photograph placed on record in respect of two bicycles and one TSR (both with negatives). Same is correctly identified by the witness. Photograph of two bicycles are already Ex. Y1(colly) State Vs. Khyali Ram and Ors. Page No. 7 of 22 FIR No. 14/2008 Uttam Nagar (total 4 photographs in negative) and photograph of TSR is Ex. Y2 (colly) (total 3 photographs in negative).)
11. In his cross-examination PW 2 stated that he has done his certificate course for journalism from Miranda house college, Delhi University. He also attended the classes there in the evening. He was doing reporting at the news channel owned by Rajesh. Rajesh was a team leader and he was the members of that team. He never received any complaint from gas agency or any customer of the gas agency regarding the theft of gas. He never weighed any cylinder. The weight and measurement dept. team weighed the cylinders at the police station. He was not present at that time when the abovesaid cylinders were weighed in PS. All the writing work was done of this case in PS. This was not a sting operation. They were just passing through the spot and there they saw few persons were transferring gas from one cylinder to other cylinder inside the TSR. The odour of gas was coming when they were passing through the said TSR. He stated the same to the police that he myself inhaled the odour of liquid petroleum gas however, he do not know whether the same was deduced in writing by the police official or not. He denied that he and his team members prepared false case in order to extort money from the owner of the gas agency. He denied that false and fabricated case has been prepared. He denied that he is deposing falsely.
12. IO/ASI Ram Chander was examined as PW 4. He stated that on 11.01.2008, he was posted at PS Uttam Nagar as ASI on emergency duty. Upon receiving DD no. 29A, he along with Ct. Devender went to the place i.e. main road, near gate no. 3, Central School, Kali Basti where he met the complainant Rajesh and two other associates of him. At that time, accused Jogender and Ashok (PO) were also present. Complainant showed him one TSR, 30 cylinders (along with slip by Bharat Gas), 3 cycles, 1 pipe which is used to remove/transfer gas from one State Vs. Khyali Ram and Ors. Page No. 8 of 22 FIR No. 14/2008 Uttam Nagar cylinder to another and 2 weighing machines (manual machines). Complainant gave him written complaint already Ex. PW-1/A on the basis of which he prepared rukka Ex. PW-4/A bearing his signature at point A. After that, he handed over the same to Ct. Devender for the registration of FIR, thereafter, he went to the PS and got the FIR registered and handed over him same after coming back from PS. He prepared site plan at the instance of complainat Rajesh Ex. PW-4/B bearing his signature at point A, prepared seizure memo for cylinders, TSR, cycles, pipe which is used to remove/transfer gas from one cylinder to another and weighing machines (manual machines) vide memos already Ex. PW-1/B, Ex. PW-1/C, Ex. PW-1/D and Ex. PW-1/E all bearing his signature at point X. Accused Khyali Ram and Jai Singh (deceased) also came at the spot. Thereafter, he arrested and personal searched all the accused i.e. Khyali Ram, Jai Singh, Ashok and Jogender vide memos Ex. PW-4/C, Ex. PW-4/D, Ex. PW-4/E, Ex. PW-4/F, Ex. PW4/G, Ex. PW-4/H, Ex. PW-4/I, and Ex. PW-4/J all bearing his signature at point X. Thereafter, he along with all the accused persons and case property came back at PS. He deposited all the relevant documents and case property at Malkhana PS Uttam Nagar. He released all the accused i.e. Jai Singh, Khyali Ram, Jogender and Ashok on furnishing of bail bonds vide Ex. PW-4/K, Ex. PW-4/L, Ex. PW-4/M and Ex. PW-4/N all bearing his signature at points X and Y. During investigation, on 20.01.2008, complainant Rajesh handed over him photographs with negatives which were taken by him along with one letter head of News India Press dated 20.01.2008. During investigation, he recorded the statement of witnesses u/s 161 Cr.P.C. (At this stage, photograph of the case property is shown to the witness. Witness correctly identifies the same and same are already Ex. P1 (colly), Y2 (colly) and Y1 (colly). Letter head of News India Press dated 20.01.2008 is shown to the State Vs. Khyali Ram and Ors. Page No. 9 of 22 FIR No. 14/2008 Uttam Nagar witness Ex. PW-4/X.) (Accused Jogender and Khyali Ram present in the court and correctly identified by the witness.)
13. In his cross examination PW 4 stated that thirty cylinder slip along with counter receipts were recovered from the possession of accused Jogender. I did not prepare the seizure memo for the same because it were concerned with 30 cylinders. No weight and measurement team called at the spot from the concerned department. None of the cylinders were subject to weighing (vol., he myself checked all the cylinders and found 7 cylinders empty). He did not verify or informed the gas agency owner that out of 30 cylinders, 7 were found empty. He had verified that the accused persons were employed in the gas agency who were authorised to deliver and handle the cylinders. They were trained staff of nirmal gas agency. No complaints or any grievance has been made by nirmal gas agency owner against the accused persons. No customer of bharat gas or nirmal gas agency ever complained of gas theft. He did not find any person during investigation who complained regarding theft of gas. He affirmed that no other evidence was found against the accused persons except the complaint made by Rajesh Kumar, statement of the person accompanying him, case property seized and photographs supplied by him. He affirmed that when police reached at the spot, Khyali Ram was not there, he came there later on. He do not know after how many hours, he came back as the matter is around 15 years old. He did not find any photograph or video showing any transfer of gas from one cylinder to another. He did not see any accused person transferring gas from one cylinder to another when he reached at the spot (vol., he was informed regarding the same by the complainant). He denied that false case has been prepared against the accused persons. He denied that no offence has been committed by the accused persons and the present case was initiated by the complainant in order to extort State Vs. Khyali Ram and Ors. Page No. 10 of 22 FIR No. 14/2008 Uttam Nagar money from the gas agency owner and to gain unjustified popularity for his news channel. He denied that he did not carry out investigation in proper and fair manner and that he is deposing falsely.
14. ASI Devender was examined as PW 5. He stated that on 11.01.2008, he was posted at PS Uttam Nagar as Ct. on emergency duty. On that day, ASI Ram Chander received DD no. 29A, thereafter, he along with ASI Ram Chander went to the place i.e. main road, near gate no. 3, Central School, Kali Basti where they met the complainant Rajesh and two other associates of him. At that time, accused Jogender and Ashok (PO) were also present. Complainant showed them one TSR, 30 cylinders (along with slip by Bharat Gas), 3 cycles, 1 pipe which is used to remove/transfer gas from one cylinder to another and 2 weighing machines (manual machines). Complainant gave written complaint to the IO already Ex. PW-1/A on the basis of which IO prepared rukka already Ex. PW-4/A. After that, IO handed over the same to me for the registration of FIR, thereafter, he went to the PS and got the FIR registered and handed over same to the IO after coming back from PS. IO arrested and personal searched accused Ashok (PO) and Jogender vide memos already Ex. PW-4/E, Ex. PW-4/F, Ex. PW-4/H and Ex. PW-4/G all bearing his signatures at points A. IO also personal searched accused Khyali Ram and Jai Singh (deceased) vide memos Ex. PW-4/I and Ex. PW-4/J both bearing his signature at point A. After that, he along with IO, accused persons and case property came back to PS Uttam Nagar. During investigation, IO recorded his statement u/s 161 Cr.P.C. (At this stage, photograph of the case property is shown to the witness. Witness correctly identifies the same and same are already Ex. P1 (colly), Y2 (colly) and Y1 (colly).) (Accused Jogender and Khyali Ram present in the court and correctly identified by the witness.) State Vs. Khyali Ram and Ors. Page No. 11 of 22 FIR No. 14/2008 Uttam Nagar
15. In his cross-examination PW 5 stated that he did not sign any seizure memo of this case. He denied that the said seizure memo was falsely prepared while sitting in the PS. He does not know how and exactly where all the documents were prepared at the spot. The owner of nirmal gas agency/any customer of nirmal gas agency was not called at the spot or at PS in his presence. He affirmed that when police reached at the spot, Khyali Ram was not there, he came there later on. He do not know after how many hours, he came back as the matter is around 15 years old. IO did not find any photograph or video showing any transfer of gas from one cylinder to another in his presence. He did not see any accused person transferring gas from one cylinder to another when he reached at the spot (vol., same was informed by the complainant). He denied that false case has been prepared against the accused persons. He denied that no offence has been committed by the accused persons and the present case was initiated by the complainant in order to extort money from the gas agency owner and to gain unjustified popularity for his news channel. He denied that he is deposing falsely.
16. The prosecution evidence was closed and thereafter the statement of accused persons u/s 313 CrPC r/w Section 281 CrPC was recorded on 17.09.2024. They denied the allegations which were levelled against them. They further stated that they are innocent and the complainant in connivance with the police has falsely implicated them in the present case to extort money from the owner of the gas agency on the basis of false and fabricated sting operation and all the witnesses are interested witnesses.
17. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused persons have committed the crime with which they have been State Vs. Khyali Ram and Ors. Page No. 12 of 22 FIR No. 14/2008 Uttam Nagar charged. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused persons and they be, therefore, held guilty and convicted for the above-said offence.
18. Per contra, Ld. Counsel for the accused persons has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused persons, they be, therefore, acquitted for the offence charged. He further submitted that no complaint was ever made by the gas agency of which the alleged cylinders belonged. He further stated that the owner of the gas agency was never examined nor was made the witness in the present case.
19. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings & Analysis of the Court
20. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
State Vs. Khyali Ram and Ors. Page No. 13 of 22 FIR No. 14/2008Uttam Nagar
21. The accused persons have been charged under Section 285/286/407/408/379/34 IPC.
22. At the outset, the case of the prosecution already stands on a weak footing.
Perusal of the testimony of PW 1 and PW 2 reflects that both the witnesses failed to recognize the accused persons. PW 1 in his cross examination by Ld. APP identified one accused Khyali Ram whereas he failed to identify the other accused Joginder. Furthermore, PW 2 in his cross examination by Ld. APP failed to identify both the accused. Apart from the abovesaid, there exists glaring lacunas which goes at the very core of the prosecution case. The prosecution, even otherwise, has not been able to prove the offences with which both the accused persons have been charged with.
SECTION 379 IPC
23. The essential ingredients to prove an offence under Section 379 IPC as follows:
a. Accused had taken the movable property dishonestly. b. Property was taken out of the possession of complainant. c. Property was taken out without consent of complainant. d. The property was moved to such taking.
24. Thus, the prosecution is burdened to prove the abovesaid essential ingredients in order to establish that the accused persons carried out theft of the case property i.e. gas cylinders. It is worth noting that the owner of the gas cylinders was neither made a witness nor was examined as a witness. From the perusal of the testimony of PW 4 i.e. ASI Ram Chander the complainant showed him one TSR, 30 cylinders (along with slip by Bharat Gas). Further in his cross examination of PW 4, he categorically stated that he did not verify or informed the gas agency owner i.e. Nirmal Gas Agency. He further in his cross examination stated that no customer of bharat gas or nirmal gas agency filed complaint of theft nor he found any person during investigation who complained regarding theft of gas or State Vs. Khyali Ram and Ors. Page No. 14 of 22 FIR No. 14/2008 Uttam Nagar cylinder. PW 5 ASI Devender also in his cross examination stated that the owner of nirmal gas agency/any customer of nirmal gas agency was not called at the spot or at the PS. Thus, it does not stand proved that the accused persons had taken the movable property dishonestly. Nor it stands proven that the property i.e. gas cylinders were taken out of the possession of the complainant without his consent. In fact, the complainant herein was an editor in News India Channel and not the owner of the movable property i.e. gas cylinders. Accordingly, the accused persons i.e. Khlayi Ram and Joginder stands acquitted for the offence under Section 379 IPC.
SECTION 407/408 IPC
25. At this stage it is relevant to note Sections 405/407/408 IPC with which the accused persons have been charged:
Section 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".
Section 407: Criminal breach of trust by carrier, etc.--Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 408: Criminal breach of trust by clerk or servant.--Whoever, being a clerk or servant or employed as a clerk or servant , and being in any manner entrusted in such capacity with property, or with any State Vs. Khyali Ram and Ors. Page No. 15 of 22 FIR No. 14/2008 Uttam Nagar dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
26. The Hon'ble Supreme Court in Delhi Race Club (1940) Ltd & Ors vs State of UP, Crl Appeal No 3114 of 2024 dated 23.08.2024 observed:
In order to constitute a criminal breach of trust (Section 406 IPC): -
1) There must be entrustment with person for property or dominion over the property, and
2) The person entrusted: -
a) dishonestly misappropriated or converted property to his own use, or
b) dishonestly used or disposed of the property or wilfully suffers any other person so to do in violation of:
i. any direction of law prescribing the method in which the trust is discharged; or ii. legal contract touching the discharge of trust (see: S.W.P. Palanitkar (supra).
27. The Hon'ble Supreme Court further observed:
".... for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence of breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership' of it must be of some other person. The accused must hold that property on trust of such other person".
28. Thus, in order to invoke the offences under Section 407 or 408 IPC the prosecution was burdened with was to prove, firstly, the accused persons were entrusted property i.e. gas cylinders and secondly, whether the accused persons have been entrusted with the property as a carrier, warehouse keeper or State Vs. Khyali Ram and Ors. Page No. 16 of 22 FIR No. 14/2008 Uttam Nagar wharfinger for invoking Section 407 IPC or was entrusted with the property as a clerk or a servant so as to invoke Section 408 IPC.
29. In the facts of the present case the prosecution has failed to establish both the abovesaid essential ingredients. The prosecution did not examine the owner of the gas agency. Thus, it remains unproved that the gas cylinders were entrusted to the accused persons. It was only through the testimony of the owner of the gas cylinders it could have been established that the accused persons were entrusted with the gas cylinders. The examination of the owner of the gas cylinder was also necessary for establishing as to in what capacity the gas cylinders were given in possession of the accused persons. Whether the accused persons were in possession of the gas cylinders in the capacity of carrier, warehouse keeper or wharfinger, clerk or servant remains unclear. The prosecution has not been able to establish as to in what capacity the accused persons were holding the gas cylinders. Thus, the prosecution has failed to prove that the case property was "entrusted" to the accused persons as well as that the same was entrusted din the capacity of either "carrier, warehouse keeper, wharfinger, clerk or servant". Accordingly, the accused persons i.e. Khlayi Ram and Joginder stands acquitted for the offence under Section 407/408 IPC.
SECTION 285/286 IPC
30. Section 285/286 are as under:
Section 285: Negligent conduct with respect to fire or combustible matter.--Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend State Vs. Khyali Ram and Ors. Page No. 17 of 22 FIR No. 14/2008 Uttam Nagar to six months, or with fine which may extend to one thousand rupees, or with both.
Section 286: Negligent conduct with respect to explosive substance.-- Whoever does, with any explosive substance, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
31. It is the case of the prosecution that on 11.01.2008 the accused persons were found filling empty LPG Gas Cylinders with the help of the pipe from already filled LPG Cylinders. Thus, it needs to be determined whether LPG Gas Cylinders containing the gas tantamount to "combustible matter" as per Section 285 IPC or an "explosive substance" for the purpose of Section 286 IPC. Close to the heels of the abovesaid, inherent to both the sections is the "rashness" or "negligence".
32. Now, so far as "combustible matter" is concerned the same is understandable to mean any matter or substance that can ignite or can cause fire. The term "Explosive substance" finds its definition under Section 2 of Explosive Act 1908. The definition reads thus:
"In this Act the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also, any part of any such apparatus, machine or implement."State Vs. Khyali Ram and Ors. Page No. 18 of 22 FIR No. 14/2008
Uttam Nagar
33. It is, therefore, clear from the definition of explosive substance that, by a fiction of law, it shall be deemed to include any material for making any explosive substance and also apparatus, machine, implement, etc. for making any such substance causing any such explosion. (Manhardas Narsang Bhai vs State of Gujarat, Criminal Revision No 22 of 2001 dated 21.06.2001, Gujarat High Court)
34. The "explosive substance" can be given to understand to mean a substance susceptible to spontaneous ignition so as to cause explosion. "Explosive substance" has a broader and more comprehensive meaning than the term 'Explosive', 'Explosive substance' includes 'Explosive'. The term 'Explosive' has not been defined in the Act. The dictionary meaning of the word 'Explosive' is 'tending to expand suddenly with loud noise; 'tending to cause explosion' (The Concise Oxford Dictionary) (Mohd Usman vs State of Maharashtra 1981 AIR 1062).
35. Apparently, from the reading of the abovesaid it is clear that LPG by itself is not an explosive substance. However, in the case at hand the act was of filling the empty cylinders from gas filled cylinders with the aid of pipe. Thus, it can be understood that the cylinder in which the gas was stored was an "apparatus" which can be said to be used for causing the substance any explosion. It can be said without any doubt that in the event LPG gas compressed in a cylinder is ignited, it would certainly have caused an explosion. Accordingly, the accused persons were dealing with an "explosive substance" as per Section 286 IPC.
36. Therefore, Section 285 IPC is not made out against both the accused Khyali Ram and Joginder as the essential ingredient for invocation of the offence is "combustible matter" which is not the case in the present matter. Both the accused are thus hereby acquitted for charge under Section 285 IPC.
State Vs. Khyali Ram and Ors. Page No. 19 of 22 FIR No. 14/2008Uttam Nagar
37. The next issue that needs adjudication is whether the act of the accused persons was "rash" or "negligent". The question arises as to what would constitute a "rash or negligent act". There is a slight distinction between a "rash act" and a "negligent act". "Rashness" conveys the "idea of recklessness or doing an act without due consideration" and "negligence" connotes "want of proper care". A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences. At this stage, attention is invited to the decision of the Hon'ble Supreme Court in Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh AIR 2000 SC 2511, wherein the Hon'ble Apex Court held the following:
"A rash act is primarily an over hasty act. It is opposed to deliberate act. Still a rash act can be a deliberate act in the sens that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
38. The indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. What is important is that he has not taken due care or has done the State Vs. Khyali Ram and Ors. Page No. 20 of 22 FIR No. 14/2008 Uttam Nagar said act with indifference to the consequences. The act of filling empty cylinders with the aid of a pipe from a gas filled LPG Cylinder by the accused persons indicate apparent rashness wherein it was being done with recklessness and with indifference to its consequences with the consequences being the possibility of explosion. Thus, the prosecution through the testimony of PW 1 and PW 2 has been able to establish the rash act of the accused person beyond reasonable doubt. Both the witnesses have stood to their testimony in the cross examination qua the fact of the act of the accused.
39. The perusal of the testimonies of the prosecution witnesses coupled with the documentary evidence reflects that PW 1 in his cross examination by Ld APP identified only accused Khyali Ram whereas he failed to identify accused Joginder. Furthermore, PW 2 in his cross examination by Ld APP failed to identify both the accused. Accordingly, the prosecution has failed to prove the charge under Section 286 IPC qua accused Joginder. The accused Joginder is hereby acquitted for the offence under Section 286 IPC.
40. On the contrary, pursuant to the discussion with respect to offence under Section 286 IPC qua accused Khyali Ram, the witness PW 1 has duly identified him. Further, the prosecution has also been able to prove that the accused Khyali Ram was rash and negligent in his act filling empty cylinders with the aid of a pipe from a gas filled LPG Cylinder. There exists no reason for the accused PW 1 to depose falsely against the accused person Khyali Ram. PW 1 is also not already known to the accused Khyali Ram. The prosecution has also been able to establish the recovery qua the seizure memo of gas cylinder, nozels, TSR and three bicycles Ex. PW1/B, Ex. PW1/C, Ex. PW1/D, Ex. PW1/E respectively. Accordingly, the prosecution has been able to prove the charge of Section 286 IPC with respect to accused Khyali Ram beyond reasonable doubt. The accused State Vs. Khyali Ram and Ors. Page No. 21 of 22 FIR No. 14/2008 Uttam Nagar Khyali Ram is held guilty and hereby convicted for the offence under Section 286 IPC.
41. This judgment contains 22 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
42. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
43. Now to be heard on quantum of sentence.
ANNOUNCED IN OPEN COURT Digitally signed
by HARSHAL
HARSHAL NEGI
ON 09th June 2025 NEGI Date:
2025.06.09
16:52:37 +0530
(Harshal Negi)
JMFC-02/Dwarka Courts
New Delhi/09.06.2025
State Vs. Khyali Ram and Ors. Page No. 22 of 22
FIR No. 14/2008
Uttam Nagar