Delhi District Court
State vs . Vipin Kumar And Ors. on 10 January, 2022
IN THE COURT OF SH MANISH JAIN, MM-01,WEST DISTRICT, TIS
HAZARI COURT, DELHI
STATE VS. VIPIN KUMAR AND ORS.
FIR No. 397/00
New case no. 70086/2016
PS: PUNJABI BAGH
U/S: 407/411 IPC
Date of commission of offence : 24.05.2000
Date of institution of the case : 23-01-2001
Name of the complainant : ASI Jai Kishan, Vigilance, West
District, Delhi.
Name of accused and address : (1) Sh. Vipin Kumar s/o Sh.
Darbari Lal r/o E-2/49, Sultan Puri,
Delhi. (Proceedings abated vide
order dated 08.03.2021)
(2) Sh. Kanwar Singh s/o Sh. Tej
Ram r/o WP-178, Village
Wazirpur, Delhi.
(3) Kanwar Pal s/o Madan Lal r/o
Ganj, Allaganj, District
Shahjahanpur, U.P. (Since PO
vide order 24.10.2002)
(4) Dharmender s/o Sh. Ramphal
r/o B-1/155, Paschim Vihar, Delhi
Offence complained of or proved : U/s 407/411 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 10.01.2022
FIR No.397/00, PS Punjabi Bagh, u/s 407/411, S/v Vipin Kumar.
Manish Digitally signed
by Manish Jain
Date: 2022.01.10 Page no.1 of 6
Jain 16:27:36 +05'30'
JUDGMENT
01. In brief, the case of the prosecution is that on 24.05.2000 at about 11:30 pm a TPT Centre, Punjabi Bagh, Delhi, accused persons namely Dharmender and Kanwar Pal (since PO) were entrusted by Indian Oil Company vide billty no.8394 to deliver Indian oil to Veer Service Station, Manju Ka Tila, Delhi but the same was misappropriated by the accused persons. It is further alleged against accused persons namely Vipin Kumar (proceedings abated) and Kanwar Singh that the truck bearing registration no. HR38C 3903 containing 329 ltrs oil was recovered from them which was retained by them. Police was informed and on the basis of the statement of the complainant, the First Information Report was thereafter registered. On the basis of investigation, charge sheet under section 407/411/34 of Indian Penal Code (hereinafter referred as IPC) was filed in the court and copy of the same was supplied to the accused persons. Charge for the offences under section 407 IPC was framed against the accused Dharmender and charge for offence u/s 411/34 IPC was framed against the accused Vipin Kumar and Kanwar Singh to which they pleaded not guilty and claimed trial.
02. The prosecution has examined 8 witnesses in support of its case, which are as follows:
PW1 Retd. ASI Vijay Kumar deposed that on 24.05.2000, he was posted at Vigilance, West as head constable and on receiving secret information by ACP S.P. Sarohi regarding illegal sale of diesel, he alongwith other police officials had visited the TPT Centre and saw one tanker bearing registration no. 3903 present there. He further deposed that accused Vipin Kumar was filling illegal diesel from tanker into two drums of 20 ltrs. and other accused persons namely Kanwar Singh and Kanwar Pal were also present there. He further deposed that accused Kanwar Singh was locking the barrel. He further deposed FIR No.397/00, PS Punjabi Bagh, u/s 407/411, S/v Vipin Kumar. Manish Digitally signed by Manish Jain Page no.2 of 6 Jain Date: 2022.01.10 16:27:52 +05'30' that they apprehended all the three accused persons. He further deposed that IO seized the case property and challan papers vide seizure memo Ex.PW1/A and Ex.PW1/B, recorded disclosure statement of accused Kanwar Pal Ex.PW1/C, arrested accused persons and conducted their personal vide memos Ex.PW1/D to Ex.PW1/F. He further deposed that IO prepared rukka and got the FIR registered through Ct. Azad Singh.
PW2 Retd. SI Kesar Singh registered the FIR Ex.PW2/A and made endorsement on rukka which is Ex.PW2/B. PW-3 HC Azad Singh deposed that on 24.05.2000, he was posted at Vigilance, West as constable. He had also visited the spot and deposed on the lines of PW1 in his testimony.
PW-4 Sh. Asheesh Kumar and PW-5 Anita Mehta deposed that they were posted as assistant manager and operation officer respectively at Indian Oil Company, Shakur Basti during the period of 1998 to 2001 and 1998 to 2009 respectively. However, they did not depose anything with respect to the present case during their testimonies.
PW-6 Retd. SI Jai Kishan deposed that on 24.05.2000, he was posted at Vigilance, West District as ASI. He deposed that on that day, ACP, PG Cell SPS Sirohi called him and Inspector Vigilance in his office. Thereafter, PW6 recorded DD no.2 Ex.PW6/A, constituted raiding party and reached at the spot i.e. TPT Centre. He further deposed that public persons were requested to join the investigation but they refused. He further deposed that they saw at the spot one tanker bearing registration no.HR38 C 3903 and accused Vipin was holding a cane of 20 ltrs. He further deposed that accused Kanwar Singh and Kanwar Pal were also present at the spot and closing the pipeline and tap of five drums. PW6 seized the said tanker vide seizure memo Ex.PW6/A. PW6 further deposed that he prepared rukka Ex.PW6/B and got the FIR Ex.PW6/C registered through Ct. Azad. PW6 prepared site plan Ex.PW6/D and sealed the challan paper Ex.PW1/B. PW6 further deposed that he arrested all the accused persons vide arrest memos Ex.PW6/E to Ex.PW6/G and also conducted their personal search vide memos Ex.PW1/D to Ex.PW1/F. He recorded disclosure statement of accused Kanwar Pal which is Ex.PW1/C. He further deposed that he FIR No.397/00, PS Punjabi Bagh, u/s 407/411, S/v Vipin Kumar. Manish Digitally signed Page no.3 of 6 by Manish Jain Jain Date: 2022.01.10 16:28:07 +05'30' took PC remand of accused Kanwar Pal and arrested the accused Dharmender vide arrest memo Ex.PW6/H. PW-7 Sh. R. Padmanabhan deposed that he was posted as Deputy Manager at Indian Oil Corporation Ltd, Shakur Basti Terminal and he prepared report regarding shortage of product in the tanker which is Ex.PW7/A. PW-8 Retd. ACP Om Prakash deposed that on 24.05.2020, he was posted at Vigilance, West as Inspector. He deposed that on receiving secret information by ACP Sh. S. P. S Sarohi regarding illegal sale of diesel at PT Centre, Punjabi Bagh, Delhi, he alongwith other police officials reached at the spot. PW8 also deposed on the lines of PW1 in his testimony.
03. After examination of all the witnesses, prosecution evidence was closed. After closure of prosecution evidence, statement of both the accused persons were recorded and they chose not to lead evidence in their defence and thereafter matter was listed for final arguments.
04. I have heard the submissions of both the parties and perused the evidence on record carefully. Ld. APP for State has submitted that the prosecution has proved its case beyond reasonable doubt and the accused be convicted for the alleged offences.
05. On the other hand, the Counsel for accused has submitted that the prosecution has failed to prove its case beyond reasonable doubt and that the witnesses have not been able to stand the test of cross examination, therefore, as there is no clinching evidence against the accused persons, they may be acquitted immediately.
FIR No.397/00, PS Punjabi Bagh, u/s 407/411, S/v Vipin Kumar. Manish Digitally signed by Manish Jain Page no.4 of 6 Jain Date: 2022.01.10 16:28:22 +05'30'
06. In order to bring home the guilt of the accused under section 407 IPC, the prosecution is required to prove that the property was entrusted to the accused as a carrier, wharfinger or warehouse keeper, and thereby the accused 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, or willfully suffers any other person so to do.
07. In order to prove the factum of entrustment, prosecution has examined 3 witnesses from Indian Oil Corporation i.e. PW4, PW5 and PW7. Unfortunately for the prosecution, PW4 and PW5 turned hostile and resiled from their statements given under section 161 Cr.P.C. PW7 deposed that in the month of May, 2000, one tanker was brought inside the terminal wherein a shortage of 300 liters was found. It is further deposed that due to shortage in the tanker, the proceedings were initiated before the local police. However, the deposition of PW7 is in total contradiction with the IO and the other police witnesses who claimed that the tanker was sealed by them with the seal of JKR, that the tanker number in which the shortage of product was found was bearing no.HR38 C 3903, that the tanker was filled with diesel. It has been specifically stated by PW7 that the seal of JKR was not present and the original seals were intact. Registration number of the tanker has also been stated to be incorrect as put forward by the prosecution.
08. It has been stated by PW7 that shortage was found in one of the tankers in the year 2000, however, prosecution is unable to establish any link of Indian Oil Corporation Limited with the tanker and the accused persons apprehended by the investigating agency. The ownership of the diesel in the tanker bearing registration FIR No.397/00, PS Punjabi Bagh, u/s 407/411, S/v Vipin Kumar. Manish Digitally signed by Manish Jain Page no.5 of 6 Jain Date: 2022.01.10 16:28:37 +05'30' no.HR38 C 3903 is never established. Accordingly, there cannot be any occasion to prove the factum of entrustment by the Indian Oil Corporation Ltd. to the accused Dharmender.
09. With respect to accused Kanwar Singh, prosecution has levelled allegations under section 411 IPC. Section 411 IPC states that "whoever dishonestly receives or retains any stolen property...", and the term 'stolen property' has been defined in section 410 IPC which inter-alia states that if the possession of the property has been transferred by committing misappropriation or breach of trust, it is said to be a stolen property.
10. In the present case, the committal of criminal breach of trust or criminal misappropriation has not been proved by the prosecution and accordingly the fact that accused Kanwar Singh received the stolen property can never be established.
11. It is trite law in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. For the reasons stated in aforesaid paragraphs, the prosecution has not been able to discharge the onus placed upon it, the benefit of which must accrue to the accused. Accordingly, accused Dharmender and Kanwar Singh is hereby acquitted of the offences punishable under section 407/411 IPC.
ANNOUNCED IN THE OPEN
COURT THROUGH VC Manish Digitally signed by
Manish Jain
ON 10.01.2022 Jain Date: 2022.01.10
16:28:52 +05'30'
(MANISH JAIN)
MM-01 (WEST)/THC/DELHI
FIR No.397/00, PS Punjabi Bagh, u/s 407/411, S/v Vipin Kumar. Page no.6 of 6