Delhi District Court
State vs . Lakhan Lal Meena on 25 January, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Lakhan Lal Meena
FIR No. 156/89
PS : NDLS
U/s. 224/400/420 IPC
JUDGMENT
a) The Sl. No. of the case : 1198/03
b) Date of Institution : 29.07.2003
c) Name of the complainant : Mr. Murshid Alam
d) The name & add. of accused : Lakhan Lal Meena,
S/o. Prasadi Lal,
R/o. House No. 1307,
Sector No. 9, Vijay Nagar,
Ghaziabad
e) Date of commission of
offence : 20.02.1989
f) Offence complained of : U/s. 224/400/420 IPC
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 21.01.2008
i) Final Order : Acquitted
j) Date of Judgment : 25.01.2008
BRIEF STATEMENT OF REASONS FOR DECISION :
1. Brief facts as germick from prosecution case are that on 20.02.1989 the Complainant alongwith Mohd. Shamuddin came to N.D.L.S. to go to his village and had gone to ticket window to purchase Railway Ticket. When the Complainant was standing in the queue, accused approached him and offered him to help in the purchase of the ticket. The complainant gave Rs. 240/ to accused to Page No. 1 purchase two tickets from NDLS to Katihar at the rate of Rs. 117/ per ticket. Accused brought one ticket for Katihar and two tickets of superfast charges and said that from Rs. 240/ only one ticket was purchased and returned Rs. 6/. When accused refused to arrange another ticket, the complainant sought the help of police. Accused was arrested and tickets were seized vide seizure memo Ex. PW1/C and B. After completion of necessary investigation challan was prepared and sent to the court for trial.
2. Accused was summoned and copy of challan and other documents were supplied to accused and a prima facie case was made out against accused. Accordingly on 17.08.1993 charge for offence punishable U/s. 406/420 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to bring home guilt of accused, prosecution cited as many as 8 witnesses in the list of witnesses and examined only two witnesses i.e. PW1 Mr. Murshid Alam (Complainant) and Mohd. Shamshudin are examined. PW1 Mr. Murshid Alam testified in his examination in chief that on 20.02.1989 he had come to NDLS to go to his village Rahua and then he had gone to ticket window and was standing in the queue. In the meantime accused came to him and enquired about his destination and journey and offered his help in purchasing the ticket. On demand of accused he gave Rs. 240/ for Page No. 2 the purchase of two tickets from NDLS to Katihar at the rate of Rs. 117/ per ticket and then he went inside the booking counter and after some time brought one ticket for Katihar and two tickets of superfast charges and said that by Rs. 240/ only one ticket could be purchased and returned him Rs. 6/ also which was due only after the purchase of two tickets for Katihar. On his persistence he again refused to give him another ticket by saying that with the amount of Rs. 240/ only one ticket for Katihar with two superfast charges could be purchased so he sought the help of police which was available on the premises and on seeing him approaching the police accused started running away, but finally was apprehended by the police and then police recorded his statement Ex. PW1/A at his instance which he signed at point A after admitting the same as correct. The cash money which he had handed over to the accused were recovered from him which were seized by the police after sealing it vide memo Ex. PW1/B which he also signed. He also gave those tickets to police which were seized vide memo Ex. PW1/C after sealing the same. PW1 identified the case property i.e. currency notes as Ex. P1 and 3 tickets as Ex. P2 to P4 as well as accused in the court.
In his cross examination by learned Defence Counsel PW1 stated that he reached at New Delhi Railway Station at about 11.30 PM. At that time the windows were closed and he had gone for Page No. 3 purchase of the ticket at 3.30 AM on 21.02.1989. When he reached at counter No. 13 there were 1012 passengers in the line. He refused to remember who was managing the counter at that time. He had not asked anything from that counter clerk and in the meantime accused came from outside and said that he was also a railway employee and asked his destination. At that time accused was wearing dark blue coat and blue pant. Accused brought three tickets from counter No. 13 and he had not seen whether accused had punched the ticket or not. Accused returned after 1015 minutes and handed over tickets. He was working in the handloom and owner of the handloom had given him Rs. 2500/ in the evening of that day. The tickets Ex. P2 to P4 are of the railway and correctly handed over to him. During the period he remained standing at Counter No. 13 and other person handling the counter had not returned by that time. Police personnel was standing near 810 places from Counter No. 13. He had not complained to any railway official on duty against the accused. Accused was apprehended by that constable on the spot. Police official enquired the matter and they both were brought to the police station. Enquiries were made at the police station. Accused after sometime ran away from there, however accused shown Rs. 240/ to the police official at the platform and the police officials took into possession the money at the police station. Page No. 4 He had handed over the tickets to the police officials at the platform and police officials took those tickets to the PS. Accused had ran away from PS towards station. 23 police officials had brought the accused at the PS after 23 minutes. He did not remember who recorded his statement Ex. PW1/A, however his statement was recorded at police station by police officials. Police had not came to the spot alongwith the accused at counter no. 13 or the railway station. He remained in the PS till evening. Police had not taken him to Counter No. 13 to identify the counter clerk who was on duty in the night. Shamshul the copassenger of his village had given Rs. 120/ for purchase of one ticket and he had given Rs. 120/ for purchase of his ticket. Shamshul had given him Rs. 120/. He denied the suggestion that he had falsely implicated the accused in this case at the instance of ASI Singhasan Singh and SHO to whom accused had declined to oblige in arrest and sparing one O.P. Saini, Clerk on counter no. 31 who was in drunken state on duty and that action of accused offended the SHO because the accused being supervisor at that time did not oblige them. Police had not checked from counter in his presence to verify whether the ticket amount was deposited with the railway or not. He denied the suggestion that nothing incriminating was recovered from the accused. He denied that he was deposing falsely.
Page No. 5
4. PW2 Mohd. Shamshuddin is also one of the witness of the spot and he narrated the whole facts in his examinationinchief and also identified the accused as well as case property in the court.
5. Thereafter no other PW came forward for his cross examination hence PE was closed on 08.09.2006 and statement of accused was recorded U/s. 313 Cr. P.C. on 20.09.2006 in which accused denied each and every incriminating evidence led by the prosecution and stated himself to be innocent and falsely implicated in this case. Thereafter at the time of argument learned APP for State moved an application U/s. 311 Cr. P.C. on 08.11.2006 which was heard and allowed vide order dated 19.12.2006 and case was adjourned for cross examination of PW2 and examination of ASI Sahi Ram.
6. Thereafter only PW2 turned up for his cross examination hence PW2 was cross examined by the learned Defence Counsel in which he stated that they both were having luggage with them. He did not accompany Murshid Alam to the ticket window to purchase the ticket to going to Katihar. He remained sitting with out baggage at a distance from the ticket window at the railway station to guard the luggage. There was a long queue at the ticket window. He could not see Murshid Alam at which number while standing in the queue because he was sitting at a distance from him. Murshid Alam came Page No. 6 back after about 20 minutes. Murshid Alam showed him one ticket of Rs. 115/ and two tickets of Rs. 2/ each of charges. He did not see the person to whom Murshid Alam had handedover the money for the purchase of tickets nor he had seen the person who had delivered the aforesaid tickets to Murshid Alam. He did not see the accused present in the court on the said date and time at the railway station, nor he had seen the accused either accepting any amount from the Murshid Alam or delivering any aforesaid ticket to him. He alongwith Murshid Alam went to the PS. He did not know what statement or complaint was made by Murshid Alam before the police on that day. He is illiterate. He did not know what is written in Ex. PW1/ B and C. He admitted that his thumb impression was obtained on some papers by the police officers, but the contents of those papers were not read to him by the police.
7. Thereafter PE was closed. On 23.10.2007 additional statement of accused U/s. 313 Cr. P.C. was recorded in which also accused denied each and every incriminating evidence led by the prosecution and stated himself to be innocent.
8. I have heard Learned APP for the State and Counsel for accused person and have gone through the material placed on record.
Page No. 7
9. The founding father of Indian Penal Code Lord Macaulay has said that : " Our Principle is simply this : Uniformity when you can have it, diversity when you must have it, but certainly in all cases."
10. Learned APP for State has argued that the prosecution has examined two material witnesses who are the pillars of this case and they have categorically alleged the charges against the accused. PW1 Mr. Murshid Alam deposed that the accused person present in the Court came to him and he gave him Rs. 240/ for purchase of two tickets from NDLS to Katihar at the rate of Rs. 117/ per ticket and then accused went inside the booking counter and after some time brought one ticket for Katihar and two tickets of superfast charges and said that by Rs. 240/ only one ticket could be purchased and returned him Rs. 6/. Accused neither gave him another ticket nor returned the balance amount. PW2 Mohd. Shamshuddin Ansari also corroborated the deposition of PW1 in his examinationinchief, as such the testimony of these witnesses are enough to prove the case against accused. Nonexamination of IO or other witnesses will not hamper the case of the prosecution in any manner, therefore, accused is liable to be convicted.
11. On the other hand learned Defence Counsel has Page No. 8 submitted that the testimony of PW1 Mr. Murshid Alam remained uncorroborated and did not get support of his version from the testimony of any other witness. PW2 Mohd. Shamshuddin Ansari categorically stated in his cross examination that he remained sitting at a distance from the ticket window at the railway station. He did not see the person to whom PW1 had handed over the money for ticket neither seen the Accused present in the court either accepting any money from the Murshid Alam or delivering any aforesaid ticket to him. He did not know what is written in Ex. PW1/B and C and his thumb impression was obtained on some papers by the police officers, but the contents of those papers were not read to him by the police.
It is further submitted by the learned Defence Counsel that prosecution cited 8 witnesses in the list of witnesses and the other material witnesses i.e. Shri Shital Prashad, ASI Sahi Ram, ASI Chain Singh, Dr. A.B. Mittal and IO ASI Singhashan Singh are not examined by the prosecution. Therefore, accused is liable to be acquitted.
12. In view of the above submissions and the facts and circumstances of the case before proceeding to any conclusion let we go through what has been defined under Section 405 IPC in respect of the criminal breach of trust. To constitute an offence of criminal breach of trust, there must be dishonest misappropriation by a person Page No. 9 in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged. There must be misappropriation or conversion to one' s own use or use in violation of any legal direction or of any legal contract and thirdly the misappropriation or conversion or disposal must be with a dishonest intention. Every breach of trust gives rise to a suit for damages, but it is only when there is evidence of a mental act of fraudulent misappropriation that the commission of embezzlement of any sum of money becomes a penal offence punishable as criminal breach of trust. It is this mental act of fraudulent misappropriation that clearly demarcates an act of embezzlement which is a civil wrong or tort, from the offence of criminal breach of trust. Every offence of criminal breach of trust involves a civil wrong in respect of which the complainant may seek his redress for damages in the civil court, but every breach of trust in the absence of mens rea, cannot legally justify a criminal prosecution. In very case of criminal breach of trust, a breach of contract is implicit. The determining factor in judging whether a case is one of criminal breach of trust or of criminal breach of contract is whether the person proceeded against had acted dishonestly. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of section 405 or section 409 unless Page No. 10 misappropriation, or conversion to personal use or disposal of property is established.
In the case of Jaikrishndas reported in AIR 1960 SC 889; 1960 Cri LJ 4801 (SC); " Ram Narayan Popli Vs. CBI" (2003) 3 SCC 641 it was held by the Apex Court that : " The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may, in the light of other circumstances, justifiably lead to a inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion even when a duty to account is imposed upon him; but where he is unable to account or renders an explanation of his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.", The illustrations to Section 405 IPC show equally clearly Page No. 11 that the property comes into the possession of the accused either by an express entrustment or by some process placing the accused in a position of trust. In the case of Arab Mian AIR 1942 Sind 167 : 204 IC 609 : (1942) it has been observed that " A person cannot be said to be entrusted with property within the meaning of the section when he obtains possession of it by means of trick. A trust implies confidence placed by one man in another.
It implies necessarily that the confidence was freely given and that there is a true consent. There is no true consent if confidence is obtained as a result of a trick. If there was a trick or deceit, a true consent cannot arise; there can be no entrustment, and no offence under Section 406, because an essential element of that offence is an entrustment.
13. Here in the present case PW1 in his cross examination stated that Shamshul the copassenger of his village had given Rs. 120/ for purchase of ticket. He had not seen any police proceeding after that whether anything was recovered from the accused or not. He did not remember who recorded his statement. It is further stated that police had not checked in his presence whether the ticket amount was deposited with railway or not. Rest of the Page No. 12 suggestions were denied. On the other hand PW2 in his cross examination has confronted with the statement of PW1 and has made a contrary version while deposing that " he could not see Murshid Alam at which number, while standing in the queue because was sitting at a distance from him. He did not see the person to whom Murshid Alam had handed over the money for the purchase of tickets nor he had seen the person who had delivered the aforesaid tickets to Murshid Alam. He did not see the accused present in the court on the said date and time at the railway station, nor he had seen the accused either accepting the any amount from the Murshid Alam or delivering any aforesaid ticket to him. He alongwith Murshid Alam went to the PS, he did not know what statement or complaint was made by Murshid Alam before the police on that day. He did not know what was written in Ex. PW1/ B and C. He admitted that his thumb impression was obtained on some papers by the police officers, but the contents of those papers were not read to him by the police."
14. Accused person in his statement recorded U/s. 313 Cr. P.C. denied the deposition made by PWs in their examination as well as the contents of charge by stating that he is innocent and has been Page No. 13 falsely implicated in this case.
15. No doubt nonexamination of IO as well as other material witnesses will not hamper if there are overwhelming evidence on record against the accused, however in my opinion the testimony of PW1 which is also not corroborated by any other prosecution witness is not enough to book the accused within the four corners of guilt. The witnesses who are not examined i.e. Shri Shital Prashad, ASI Sahi Ram, ASI Chain Singh, and IO ASI Singhashan Singh are material witnesses and their nonexamination certainly hampered the case of the prosecution. This view is strengthen by the observations held in a case cited in 1994 Crl. L. J. 3446 where in it was observed that : " Nonexamination of the material witnesses further strengthening doubt about genuineness of whole incident -
Prosecution failed to prove its case against the accused beyond a reasonable doubt and the accused is acquitted."
16. The word " TRUST" is a comprehensive rexpression and has been used as covering not only the relationship of trustee and beneficiary but also that of bailer and bailee, master and servant, pledger and pledgee and all other relationships which postulate the existence of a fiduciary relationship between the complainant and the Page No. 14 accused. The trust may not be legal or in furtherance of a lawful object, but if there is no trust there will be no offence under this section. In all cases given in the illustrations to Section 405 IPC in which the person is said to have committed the offence, the property in respect of which it is said to have been committed with the property of another person, or property of which the offender was beneficial owner, although in one case, that of the executor, he had the legal title.
In the case of Nga Hmu reported in (1901) 1 UBR (1897 1901) 345 and Parmod Ban Behari Saran reported in (1928) 29 Cri LJ 90 (Pat.) it was held that : " To make out a case of criminal breach of trust it is not sufficient to show that money has been retained. It must also be shown that the accused disposed of it in some way other than that in which he was bound to apply it and that he did so dishonestly.
The mere fact that the accused did not at once apply the money to the purpose for which it was intended does not amount to criminal breach of trust. There must be some dishonest use of money to constitute of offence."
Hence, the evidence led by the prosecution is not enough Page No. 15 to book the accused within four corners of guilt. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Doubts must be actual and substantial doubts as to the guilt the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense.
The testimony of PW1 is not corroborated with the testimony of PW2 on the material aspects with respect to the presence of both the witnesses, handing over of money by PW1 to the accused and its acknowledgment or regarding delivery of the tickets to the complainant. Even then PW2 has discarded the testimony of PW1 on all material aspects including the presence of the accused person at the spot. The evidence of both witnesses are conflicting with each other as such their testimony is found not trustworthy and they cannot be relied upon to hold the accused guilty. Investigating Officer is also one of the material witnesses to prove the investigation and the documents prepared during the course of investigation including the seizure memo of the tickets and the recovery of the currency notes from the possession of the accused in presence of police officials. The major portion of the evidence is Page No. 16 found to be deficient. The testimony of PW1 somehow does not lead as a necessary corollary to lead conviction of the accused. There are variations between the testimony of PW1 and PW2 hence same does not inspire any confidence. The point is two alternative possibilities are not conclusive.
17. With the above discussion I come to the conclusion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, there are dent in the case of the prosecution due to nonexamination of the material witnesses and also there are material contradictions and discrepancies, exaggerations and improvements in the deposition of PW2. Accordingly by giving benefit of doubt, accused Lakhan Lal Meena, S/o. Prasadi Lal is hereby acquitted from the charge leveled against him in this case.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 25.01.2008 MM:DELHI. Page No. 17 State Vs. Lakhan Lal Meena FIR No. 156/89 PS : NDLS U/s. 224/400/420 IPC 25.01.2008 Present: APP for the State. Accused on bail with Counsel.
Vide separate judgment of today accused Lakhan Lal Meena, S/o. Prasadi Lal is acquitted from charges leveled against him in this case. Bail bond of accused is cancelled. Surety is discharged.
Case property, if any, be disposed of in accordance with law. File be consigned to R.R. (S.K. Gautam) MM/Delhi 25.01.2008 Page No. 18