Delhi District Court
State vs . Vinod Kumar on 3 September, 2012
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Vinod Kumar
FIR NO: 435/99
P. S. Sriniwas Puri
U/s 407 IPC
Unique ID no. 02403R0017461999
JUDGMENT
Sl. No. of the case : 517/2 (7.10.1999) Date of its institution : 7.10.1999 Name of the complainant : Sh. R.S. Parshad Date of Commission of offence : 22.8.1999 Name of the accused : Sh. Vinod Kumar Offence complained of : Section 407 IPC Plea of accused : Not guilty Case reserved for orders : 16.8.2012 Date of judgment : 3.9.2012 Final Order : Convicted for offence under section 379 IPC BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Vinod Kumar upon the police report filed by P.S. State Vs. Vinod FIR no. 435/99 Sriniwas Puri u/s 407 Indian Penal Code (for short IPC).
2. As per the prosecution's story on 22.8.1999 at about 10.30 am complainant R.S. Parshad hired TSR no. DL 1RC 4345 from K.M. Pur and the accused was driving the said TSR and at the instance of complainant R.S. Parshad accused stopped the vehicle at Okhla Sabji Mandi at about 11.30 am and in TSR he left his VCR Panasonic make and while accused was entrusted with the VCR as carrier, he escaped with the VCR and thus committed an offence u/s 407 IPC.
3. After completing the formalities, charge sheet was filed against the accused and the charge was framed against the accused u/s 407 IPC to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined eight witnesses.
5. PW 1 is Sh. R.S. Parshad whose testimony is to the effect that on 22.8.99 he had hired one TSR no. DL 1RC 4345 from K.M. Pur and reached Okhla Subji Mandi in order to purchase fruit. He got down from TSR leaving behind his VCR make Panasonic in the TSR and crossed the road. After purchasing fruit when he came back to TSR, he did not found the same at the spot. He correctly identified the accused in the Court.
6. PW 2 is HC Surender who was the duty officer and proved the FIR as Ex.PW2/A.
7. PW 3 is Ct. Hari Singh who was the DD writer and proved the DD no. 11 as Ex.PW2/A.
8. PW 4 is Sh. K.S. Mohi, the then Ld. ADJ, Tis Hazari Court and proved the TIP proceedings as Ex.PW4/A.
9. PW 5 is Ct. Tej Singh who deposed that on 22.8.99 he was posted at State Vs. Vinod FIR no. 435/99 police station Sriniwas Puri and on receiving of DD no.11B he alongwith HC Ramesh Chand reached at Priyadarshni Computer College Okhla Subzi Mandi where complainant met and narrated the incident to him. Thereafter, investigating officer recorded statement of complainant and prepared rukka and the FIR was got registered through him.
10. PW 6 is Ct. Vasant Kumar who was the formal witness and deposed that on 26.8.99 he had joined the investigation with HC Ramesh Chand and they both reached at Indira Camp Okhla Sabzi Mandi and apprehended accused Vinod who got recovered one PC board which was kept in a blue colour Tat bori from his jhuggi. He also proved certain documents like seizure memo of PC board as Ex.PW1/A, pointing out memo as Ex.PW6/B, disclosure statement as Ex.PW6/C, arrest memo of accused as Ex.PW6/D, personal search memo as Ex.PW6/E, seizure memo of TSR as Ex.PW6/F.
11. PW 7 is Sh. Manohar Lal who proved his reply to the notice u/s 133 M.V Act as Ex.PW7/A and seizure memo of TSR as Ex.PW6/F.
12. PW 8 is HC Ramesh Chand who was the investigating officer of this case and proved his investigation alongwith certain documents like statement of complainant as Ex.PW1/A, endorsment as Ex.PW8/A, copy of FIR as Ex.PW2/A, site plan as Ex.PW8/B, seizure memo of PC board as Ex.PW1/A, pointing out memo as Ex.PW6/B, disclosure statement as Ex.PW6/C, arrest memo of accused as Ex.PW6/D, personal search memo as Ex.PW6/E, seizure memo of TSR as ex.PW6/F.
13. This is the overall prosecution's evidence in this case.
14. After recording the evidence of this witness, the prosecution evidence was closed. The accused was examined under the provision of section 313 Cr.P.C. and all State Vs. Vinod FIR no. 435/99 the incriminating evidence were put to him which he denied and stated that complainant never hired his TSR and that he has been falsely implicated and had not led defence evidence.
15. I have heard the Ld. APP for State and counsel for accused and perused the records of the case.
16. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
17. On the other hand, it has been argued by counsel for accused that there are certain infirmities in the case of the prosecution which he had categorically pointed out in his written submissions. He has argued that on the basis of material on record, offence under section 407 IPC is not made out against the accused and he is entitled to be exonerated.
18. I have bestowed my thoughtful consideration to the rival submissions of both the sides.
19. The ingredients of the offence of criminal breach of trust are : (1) the accused must have been entrusted with property or dominion over it and (2) the accused must have misappropriated the property or disposed of that property in violation of such trust. So, in order to bring home the charge of criminal breach of trust, there has to be an entrustment, thereafter misappropriation or conversion to one's own use or use in violation of any legal direction or of any legal contract and finally the misappropriation or conversion or disposal must be with a dishonest intention. The word "entrusted" is not a term of law. In its most general significance all it imports is a handing over of the possession for some purpose which may not imply the conferring of any proprietry State Vs. Vinod FIR no. 435/99 right at all. Further, entrustment need not be express but may be implied.
20. In the instant case, if I peep into the materials and evidence on record, I have serious misgivings whether in the case in hand Section 407 or for that matter even section 406 is attracted at all or not. Let me advert to the relevant extract of the evidence of PW 1 R S Parshad who is the complainant and the sole eye witness in the present case:
"On 22.08.99 I had hired one TSR no. DL1RC 4345. I had hired TSR from Kotla and I had reached Okhla subji mandi in order to purchase fruit. I got down from TSR. I had crossed the road. After purchasing fruit when I came back TSR was not there. At that time when I went for purchasing fruits, I had left my VCR make National Panasonic in the TSR. Driver of TSR ran away with my VCR Panasonic. I can identify driver who was driving TSR....."
21. Reading of the aforesaid extract nowhere insinuates that PW1 in any manner entrusted the custody either actual or constructive of the said VCR to the accused. As already stated by me that entrustment can be express or implied but in the instant case, there appears to be no entrusment at all. It is not the case of the complainant that when he disembarked from the TSR for the purpose of buying the fruits, he had told the accused to take care of his belongings. Had that been so then the case could be said to have the element of entrustment. Accused TSR was hired for transporting the complainant to some destination and there was no hiring as a carrier of the VCR. The only evidence is that he hired a TSR for some destination and in the mid way he got the TSR halted to buy fruits and as soon as he returned back, TSR was not there. At any stretch of imagination, from these circumstances element of entrustment of the VCR to the accused could not be extrapolated. Mere fact that PW 1 left the VCR in the said TSR when he got down to buy fruits, it cannot be said that he entrusted the VCR to the accused. Since the essential element of entrustment of the property by the com State Vs. Vinod FIR no. 435/99 plainant to the accused in the instant case is conspicuous by its absence and proving of the same by the prosecution was indispensable in order to establish the charge of criminal breach of trust under section 407 IPC against the accused, therefore accused cannot be held liable for the offence under the aforesaid section. Now the question arises that if it is established that accused dishonestly ran away with the VCR of the complainant, then cannot he be held liable for theft under section 379 IPC. But then again the question arises that in the absence of charge of theft, can criminal liability be fastened upon him for the said offence. The answer lies in the Judgment of Supreme Court in Narwinder Singh v. State of Punjab, 2011 (1) RCR 427 SC, in which it has been held that defect in framing charge would not disable the court from convicting the accused for the offence which was been found to be proved on the basis of the evi dence on record. In the said case, charge was framed under section 304B IPC but ac cused was found guilty of offence under section 306IPC and was convicted for the same. The facts and development in the case in hand are squarely covered by the abovesaid case, therefore there is no impediment in holding the accused guilty for theft if there is sufficient or overwhelming evidence in this regard and no prejudice is caused to the accused.
22. For proving the offence of theft, what is to be established by the prosecution is that the accused has the dishonest intention to take away the property of the com plainant and then actually got succeeded in taking away the property. That is what had happened in the instant case.PW1 R S Parshad has categorically identified the ac cused person whose TSR he hired from Kotla and when he stopped midway to buy the fruits, accused ran away with his VCR and the PC Board which he kept in the TSR at the time of boarding it. Accused did not choose to cross examine PW1 on the afore State Vs. Vinod FIR no. 435/99 said aspect and hence the testimony to that effect remained uncontroverted and unre butted. Complainant lodged a complaint with the police Ex PW1/A which set the crimi nal law into motion.
23. PW 2 Head Constable recorded the F.I.R Ex PW2/A.PW 6 Ct. Vasant Kumar arrested the accused vide memo Ex PW6/D. His personal search was conducted vide memo Ex PW6/E. Accused gave disclosure statement Ex PW6/E and got recovered the PC Board of the VCR which was seized vide memo Ex PW6/A. In his disclosure statement, he admitted fleeing away with the VCR which was left behind by the com plainant in his TSR. Thereafter, at his instance one blue jute bag and a PC board was recovered which complainant PW 1 identified correctly at the time of T.I.P of case property and later at the time of his evidence to be the same bag which he left in the TSR. At this juncture, let me advert to section 27 of Evidence Act, 1872.
24. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information re ceived from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates dis tinctly to the fact thereby discovered, may be proved.
25. The provisions of Section 27 of the Act clearly states that when any fact is de posed to as discovered in consequence of the information received from a person ac cused of any offence, in the custody of the police officer, so much of such, information, whether it amounts to a confession or not, as relates distinctly to the fact thereby dis covered, may be proved.
State Vs. Vinod FIR no. 435/99
26. In the case titled Sanatan Naskar v. State of West Bengal, 2010 (3) RCR Criminal 620, the various requirements of section 27 is summed up as follows:
The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevan cy of the fact discovered must be established according to the prescriptions relating to rele vancy of other evidence connecting it with the crime in order to make the fact discovered ad missible.
(1) The fact must have been discovered.
(2) The discovery must have been in consequence of some information received from the ac cused and not by the accused's own act.
(3) The person giving the information must be accused of any offence. (4) He must be in the custody of a police officer.
(5) The discovery of a fact in consequence of information received from an accused in cus tody must be deposed to.
(6) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
27. So from the above, it is manifest that any recovery made at the pointing of the accused may be admissible in evidence against him. Although in the disclosure state ment of the accused Ex PW6/C, he did not specifically mention about the jute bag and the PC board but the same was recovered by the police at his instance from his jhuggi and complainant also identified the jute bag Ex. P2 and the PC board of the VCR at State Vs. Vinod FIR no. 435/99 the time of his deposition. PW 4 Sh. Mohi who as MM got conducted the T.I.P of case property also deposed that complainant correctly identified the case property. PW 8 Head Constable Ramesh Chand also reiterated the factum of recovery of the case property at the instance of the accused in his deposition. Testimony of almost all the witnesses remained unrebutted except that of PW 8 who was cross examined pursuant to the application of the accused under section 311 Cr.P.C. However nothing material was elicited from his cross examination which could advance the cause of the ac cused.
28. Counsel for the accused has argued that accused has been falsely implicated as he never drove TSR no. DL1RC 4345 and no notice under section 133 Motor Vehi cles Act was given by the police to the owner of the abovesaid TSR. It is further ar gued that TSR no. DL1R 4345 was being driven by the accused which is not the same TSR as mentioned by the complainant. To address this issue, let us refer to the testi mony of PW 8 who stated that complainant later on gave supplementary statement that TSR no. could be DL1R 4345 also and thereafter notice under section 133 M.V Act was given to the owner of both the TSR and when owner of TSR DL1R 4345 appeared along with the driver in the police station, complainant correctly identified the driver to be the same person whose TSR he hired. Although no such supplementary statement of the complainant is on record but we cannot loose sight of the fact that complainant identified the accused in the court and it is trite that the identification in the court for the first time during the trial is although a weak but substantive piece of evidence. There is no reason why R S Parshad (PW1) would falsely implicate the accused. It is not the stand of the accused that he was having animosity with him and had falsely implicated State Vs. Vinod FIR no. 435/99 him. In view of this, aforesaid argument of the learned counsel for the accused pales into insignificance.
29. Considering the overall evidence on record, although prosecution has not been able to bring the case of the accused within the province of section 407 IPC but from the evidence on record, section 379 IPC is attracted against the accused which stands proved beyond reasonable doubt. Deposition of almost all the material witness es have not been challenged or demolished in the cross examination. Therefore, ac cused Vinod Kumar stands convicted for the offence under section 379 of IPC. Let he be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja)
on 03.09.2012 Metropolitan Magistrate
South East, New Delhi
State Vs. Vinod FIR no. 435/99