Delhi District Court
State vs . Umesh Thatera & Ors on 13 May, 2011
1 FIR NO 752/07
IN THE COURT OF MS. MONIKA SAROHA :
M.M.05(SOUTH DISTRICT), SAKET NEW DELHI
STATE VS. UMESH THATERA & ORS
FIR NO. : 752/07
P.S. : Hauz Khas
U.S. : 406/34 IPC
J U D G M E N T
a. Sl. No. of the case and : 19/2 dated 06.02.2008
date of its institution
b. Name of the complainant : Smt. Ruchika Anand
W/o Late Sh. Ranjeet Anand
R/O H.No 21 D/A, Yusuf Sarai Village
New Delhi 110016.
c. Date of commission of
offence : 10.12.2007
d. Name of the accused : (1) Umesh Thatera S/o Sh. Badri Sahu
R/o Vill & PO Lalitpur, PS Bahipur,
Distt. Bhagalpur, Bihar.
(2) Niranjan Poddar S/o Sh. Chamak Lal
R/o Vill & PO Lalitpur, PS Bahipur,
Distt. Bhogalpur, Bihar.
e. Offence complained of : U/s 406/34 IPC.
f. Plea of accused : Pleaded not guilty
g. Case reserved for orders : 13.05.2011
h. Final order : Convicted
i Date of such order : 13.05.2011
2 FIR NO 752/07
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. The material allegation against both the accused is that they were entrusted with three gold bangles by the complainant Ruchika Anand for the purposes of cleaning the same and thereafter both the accused dishonestly took away the same. Further after the complainant raised an Alarm the accused were apprehended by public persons and the gold articles were recovered from them.
2. On the abovesaid facts, after completion of the investigation, the chargesheet was filed in the Court. Copies were supplied to both the accused and after completion of necessary formalities, on 30.07.2010 charge for commission of the offence punishable U/s 406/34 IPC was framed upon the accused to which they pleaded not guilty and claimed trial.
3. The prosecution to prove its case examined four PWs. Statement of accused was also recorded U/sec. 313 whereby accused denied the story of the prosecution. The relevant and material extract of evidence produced by the prosecution is discussed in the following paragraphs.
4. PW1 Smt. Ruchika Anand is the complainant. She is the chief eye witness. She has deposed that on 10.12.2007 at about 12.30 PM two persons came to her house and stated that they clean the gold ornaments. Thereafter this witness gave three gold bangles to them for the purpose of cleaning the same and they stated that they will polish them like a new 3 FIR NO 752/07 bangles. According to this witness, the accused persons asked her to bring a utensil with water and they dipped the said bangles in the said utensil. After the bangles were so dipped the accused asked the victim to cover the same with a lid. Thereafter the accused also asked this witness not to put her fingers into the said utensil filled with the water repeatedly upon which this witness became suspicious about the accused and realized that her gold bangles were not in the utensil. Thereafter soon after this discovery, both the accused ran away from the spot with her bangles and she ran behind them shouting for help upon which the accused were thereafter apprehended near the residential colony of the victim by the watchman. A lot of public persons had gathered at the spot by that time and the gold bangles were recovered from the possession of the accused persons. Thereafter this witness called the police and when it arrived this witness handed over both the accused to police officials. The police thereafter recorded her statement Ex.PW1/A which this witness has admitted in her chief examination. In her crossexamination the defence taken by the accused is that a dispute arose between the complainant and the accused persons regarding the cost of cleaning the Bengals and that is why this case. The accused thus appear to have admitted the remaining factum of being handed over the bangles for cleaning. No material contradiction were brought out in the crossexamination of this witness.
4 FIR NO 752/07
5. PW2 Sh. Taufiq Khan is the public witness to the recovery of the gold bangles from the accused and the factum of they being apprehended by the public and the complainant. This witness has deposed that on 10.12.2007 he was standing at a TPoint near his office i.e. behind of H.No. K11, Hauz Khas and in the afternoon at about 12.30 PM one of the accused came running and stopped near a tree followed soon by another accused. Both the accused were correctly identified by this witness. Thereafter, according to this witness, at the same time he heard the noise of "Chor Chor Pakdo Pakdo" and got suspicious therefore he tried to apprehend the two accused who had come running in suspicious circumstances and by that time other person had also reached the spot thus this witness alongwith the other persons took over the two accused and apprehended them. At the same time, one lady who was residing nearby came there and told this witness that her gold Jewelery was taken by the accused Niranjan who took out gold Kangan and gave to the lady in the presence of this witness and thereafter the said lady called the PCR and the police came to the spot. In his crossexamination this witness has stood firm by his testimony and no material contradiction could be brought out in the same.
6. PW3 Ct. Bhanwar Lal deposed that on 10.12.2007 on receiving DD no. 22B he alongwith ASI Mohan Lal reached the spot i.e. H.NoP6, Hauz Khas Enclave, New Delhi where complainant Ruchika Anand presented to them both the accused stating that they had stolen her gold Jewelery and 5 FIR NO 752/07 her statement was recorded by the IO. As per this witness on the statement of the complainant, the IO prepared the rukka and sent him to Police Station for registration of FIR. Thereafter this witness got registered the FIR and handed over the original rukka and copy of FIR to the IO. The accused were arrested and their personal search were conducted in the presence of this witness. The arrest memo is exhibited as PW3/1 and PW3/2 for both the accused. The personal search memo is exhibited as Ex.PW3/3 and PW3/4. Further, the articles like brush, plastic container used for cleaning Jewelery were also recovered in the presence of this witness vide memo Ex.PW3/5 from the person of accused Niranjan. In his crossexamination this witness has stood firm by his testimony and no material contradiction could be brought out in the same.
7. PW4 SI Mohan Lal is the investigating officer. He has stated that he reached the spot with Ct. Bhanwar Lal wherein the complainant handed over the accused to him alleging theft of gold bangles on the pretext of cleaning the same. This witness recorded the complaint, prepared the rukka and got the case registered against the accused. This witness prepared the site plan at the instance of the complainant i.e. Ex.PW4/2. The accused were arrested by this witness and statement of public witnesses were also recorded.
8. No other witness was examined by the prosecution. Statement of the accused u/s 313 Cr.PC was recorded wherein they stated that they have 6 FIR NO 752/07 been falsely implicated. Final arguments as advanced by Ld. APP for the State and Ld. Defence counsel were heard at length.
9. Coming now to the appreciation of evidence led by the prosecution for it is on the evidence of the prosecution and its strength that the fate of this case depends.
10. PW1 the complainant has correctly identified the accused and stated that they both came together to her house and assured her of cleaning of her gold jewelery which assurance she believes and handed over her jewelery to them for the purposes of cleaning. There is no contradiction in the testimony of this witness and this factum of jewelery being handed over for cleaning is not disputed by the accused as well, as in the cross examination they have suggested to the complainant that this case was registered on account of the dispute regarding the amount of money to be paid to them for cleaning arising between the parties. Thus the factum of bangles being handed over to the accused for the purposes of cleaning is clearly established. Now this handing over clearly amounts to entrustment of movable property to the accused by the victim. This entrustment was for the limited purposes of cleaning.
Thereafter the complainant has mentioned that the accused ran away with her bangles after she discovered the ploy being used by them to befool her. From her chief examination the sequence of events appears to be as follows The complainant handed over the bangles for cleaning which 7 FIR NO 752/07 the accused put in a utensil and thereafter asked the complainant to cover the utensil with the lid and when she had turned away to fetch the lid the accused dishonestly took the said bangles. At the same time, the complainant got suspicious of their conduct and realized that her bangles were not in the utensils therefore she raised an alarm and the accused ran away from her house into the lane but were soon apprehended by public persons who had heard the scream of the complainant as it was broad day light and a busy residential area. Thereafter the unrebutted chief examination of this witness clearly establishes that her gold bangles were recovered from the accused persons in the presence of public persons after which she called the police. Thus the recovery of the articles misappropriated by the accused is also established in the testimony of the victim herself. This testimony is corroborated in part by that of PW2. This witness was present at the place where the accused were apprehended as he worked in the same area. This witness has also deposed that he had heard the noise of "Chor Chor" and seeing the suspicious way in which the accused had come running he tookover the accused persons alongwith others. Without any challenge to his testimony or evidence to the contrary this witness clearly deposes that in his presence one of the accused took out gold Kangan and gave them to a lady. This witness is not alleged to be related to the victim in any manner. Thus I have no reason to disbelieve the eye witness account rendered by him regarding the apprehension of the 8 FIR NO 752/07 accused, recovery of gold bangles from them, the coming of the police to the spot etc. In his crossexamination this witness has only further elaborated his testimony in chief and no contradiction could be brought out.
11. It is correct that, it can not be clearly inferred from the testimony of PW1 and PW2 as to from which accused the bangles were recovered and which accused told the complainant that they should be handed over the bangles for cleaning. However, common intention on the part of the both the accused is evident and writ large in the entire evidence. Both the accused approached the victim together, were together when the bangles were handed over and put in a utensils, they ran from the spot together and were arrested by the public when they were together and remained so when gold bangles were recovered from either of them. Thus their conduct leaves no doubt regarding their common intention to commit the offence of criminally breaching the trust the victim deposed in them while handing over her gold jewelery to them for the purposes of cleaning.
12. PW3 and PW4 have together established that the investigation was duly carried out by the police which included arrested them after they were apprehended by the public and recovery of jewelery cleaning articles etc from them. In the crossexamination of these witnesses, the factum of arrest was never denied.
13. From the above discussion regarding the testimonies of these witnesses, this court is satisfied that all the ingredients for the offence of 9 FIR NO 752/07 criminal breach of trust as define in section 405 IPC are made out. When the gold bangles were handed over to the accused for cleaning they were entrusted with property and when they took and ran away with the same they had clearly acted in a dishonest manner, dishonestly using the gold bangles in violation of the implied contract which entailed that they would return the bangles after cleaning the same and would receive some renumeration for the same. The accused never returned the gold bangles and infact ran away with the same. Thus the accused acted in a dishonest manner. The law governing criminal breach of trust has been laid down by the Hon'ble Delhi High Court in TUNCAY ALANKUS Vs. UNION OF INDIA, 2000 (86) DLT 62, wherein the Hon'ble High Court has stated that a person can be said to have misappropriated some property if he has used it in a way different from what he was bound to do by virtue of a contract. Now the contract as mentioned in Section 405 itself could be both expresses and implied. There can be no dispute to the fact that when the accused ran away with the gold bangles entrusted to them for the purposes of cleaning they clearly acted in violation of the terms of entrustment and of the duty to act in a particular way only with respect to the bangles.
14. Thus on the basis of the testimonies of the eye witnesses, investigation carried out and law governing the offence of criminal breach of trust as defined in Section 405 IPC, this court is satisfied that the accused are guilty of having committed the offence defined u/s 405 IPC. Accordingly 10 FIR NO 752/07 they are convicted u/s 406 IPC.
15. Let the accused be heard on the point of sentence. Copy of judgment be given to the accused.
Announced & Dictated in (MONIKA SAROHA) the Open Court on 13.05.2011 M.M.05(South District): 13.05.2011.