Delhi District Court
State vs Vinod Kumar Pandey on 16 December, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST
CLASS-05, SOUTH EAST, SAKET COURTS DELHI
Presided over by- Dr. Aneeza Bishnoi, DJS
Cr. Case No. -: 8082/2023
Unique Case ID -: DLSE020260482023
No.
FIR No. -: 95/2010
Police Station -: Sarita Vihar
Section(s) -: 407/34/174A IPC
In the matter of -
STATE
VS.
VINOD KUMAR PANDEY & ANR.
.... Accused
1.Name of Complainant : Sh. Ramesh Pashad Chaudhary (1) Vinod Kumar Pandey
2. Name of Accused :
(2) Mahender Kumar Pandey Offence complained of or
3. : 407/34/174A IPC proved
4. Plea of Accused : Not Guilty
5. Date of registration of FIR : 01.01.2010 Date of filing of
6. : 16.02.2024 chargesheet
7. Date of Reserving Order : 26.11.2025
8. Date of Pronouncement : 16.12.2025 Vinod Kumar Pandey is declared PO vide order dated
9. Final Order : 08.03.2011 Mahender Kumar Pandey is acquitted Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 1 of 9 Digitally ANEEZA signed by BISHNOI ANEEZA BISHNOI Argued by -: Sh. Shubham, Ld. APP for the State.
Sh. Anil Kumar Gupta, Ld. counsel for accused Mahender.
BRIEF STATEMENT OF REASONS FOR THE DECISION-:
A. FACTUAL MATRIX:
1. Briefly put, the case of the prosecution is that on the intervening night of 10.03.2010 at about 08:00 PM at D-115, Aali Vihar, New Delhi, within the jurisdiction of PS Sarita Vihar, accused Mahender Kumar Pandey alongwith co-accused Vinod Kumar Pandey (since declared proclaimed offender and absconding) were entrusted with the case property i.e. 1050 jeans pants, to be transported in vehicle no. DL1LL-3417 to Panipat. However, accused Mahender Kumar Pandey alongwith Vinod Kumar Pandey in furtherance of their common intention misappropriated / converted to own use, the case property of the complainant Ramesh Prasad Chaudhary and thereby the accused persons alleged to have committed the offences punishable u/s 407/34 IPC.
2. Charge was framed against accused Mahender Kumar Pandey u/s 174A IPC to which he pleaded guilty and do not claim trial.
2. Charge was framed against the accused u/s 407/34 IPC. PROSECUTION EVIDENCE -
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
Digitally ANEEZA signed Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 2 of 9 BISHNOI by ANEEZA BISHNOI ORAL EVIDENCE PW-1 : Sh. Ramesh Prashad Chaudhary PW-1 : HC Amit Kumar PW-3 : Inspector Suresh Yadav PW-4 : Retd. SI Jagdish Prasad PW-5 : HC Subodh Kumar DOCUMENTARY EVIDENE Ex. PW-1/1 Disclosure statement of accused :
(Colly.) Mahender Kumar Pandey
Arrest memo of accused Mahender
Ex. PW-1/2 :
Kumar Pandey
Ex. PW-3/A : Rukka
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
4. The Statement of Accused u/s 313 r/w 281 Cr.P.C was recorded on 12.08.2025 and all the incriminating circumstances appearing in evidence were put to the accused who stated that he has been falsely implicated in the present case. The accused chose not to lead any evidence in his defence and therefore, the defence evidence was closed, and matter was fixed for final arguments. Thereafter, final arguments were heard, and the judgement was reserved.
ARGUMENTS -
5. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
6. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that offence of criminal breach of trust has been established against the accused.
Digitally ANEEZA signed Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 3 of 9 BISHNOI by ANEEZA BISHNOI
7. Per contra, learned counsel for the accused has argued that the prosecution has utterly failed to establish the essential ingredients of the offence under Section 407/34 IPC beyond reasonable doubt. It is submitted that mere allegation of entrustment is not sufficient unless the same is proved by cogent documentary and oral evidence. Learned counsel has further argued that the entire case of the prosecution rests solely upon the testimony of the complainant, who is an interested witness, and no independent public witness has been examined despite the alleged incident involving a commercial transaction. It is contended that the alleged case property i.e. 1050 jeans pants has never been recovered from the possession of the accused, either at the time of alleged occurrence or even after his arrest in the year 2023, which seriously dents the prosecution version. It is further submitted that the accused was merely a helper and had no dominion or control over the vehicle or the alleged goods. No evidence has been led by the prosecution to show any dishonest intention or misappropriation on the part of the accused. Learned counsel has also argued that the accused was arrested after more than thirteen years of the alleged incident, and even thereafter, no recovery or incriminating material was effected from him. Even the site plan was subsequently changed as admitted by the prosecution witness, which casts a serious doubt on the genuineness of the prosecution case. Thus, learned counsel for the accused has argued that the prosecution has failed to prove entrustment, misappropriation as well as common intention, which are the sine qua non for the offence under Section Digitally Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 4 of 9 ANEEZA signed by BISHNOI ANEEZA BISHNOI 407/34 IPC. Hence, the accused is entitled to benefit of doubt and deserves to be acquitted.
DISCUSSION-
8. In order to consider the allegations qua section 407/34, IPC, it is pertinent to refer to the definition of 'stolen property'. It is defined in section 407, IPC and the relevant portion is as follows:
"Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property....".
9. It is a settled position of law that to bring home an offence under Section 407 IPC, which is an aggravated form of criminal breach of trust, the prosecution is under a bounden duty to establish, first and foremost, the factum of entrustment of the specific property to the accused in his capacity as a carrier, warehouse-keeper or bailee, coupled with his dominion over such property, and further to prove dishonest misappropriation or conversion thereof. Mere loss of goods, shortage, or failure to account, in the absence of cogent evidence demonstrating dishonest intention, does not ipso facto constitute an offence of criminal breach of trust, as lucidly enunciated by the Hon'ble Supreme Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 and Velji Raghavji Patel v. State of Maharashtra, AIR 1965 SC 1433. It has further been held that criminal liability cannot be fastened merely because a civil or contractual dispute exists between the parties, nor can criminal law be permitted to be employed as a tool to settle commercial scores, as observed in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241. Additionally, the Digitally signed Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 5 of 9 ANEEZA by BISHNOI ANEEZA BISHNOI Hon'ble Supreme Court has cautioned that dishonest intention must be proved by clear and unimpeachable evidence and cannot be inferred on the basis of conjectures or presumptions alone (C.S. Krishnamurthy v. State of Karnataka, (2005) 4 SCC 81). In the absence of clear proof regarding actual custody, control, and conscious misappropriation of the entrusted property, the benefit of doubt must necessarily enure in favour of the accused (State of Punjab v. Balkar Singh, (2004) 3 SCC 582). The Hon'ble Delhi High Court has also reiterated that courts must exercise circumspection while dealing with offences of criminal breach of trust and insist upon strict proof of entrustment and mens rea before recording a finding of guilt (Sunil Kumar v. State (NCT of Delhi), 2010.
10. In addition to the aforesaid, the accused is also entitled to benefit of doubt for the following reasons.
Non-joining of independent persons in investigation
11. In the present case, no independent public person was joined in the investigation/ proceedings to witness the recovery/ search/proceedings.
12. Accordingly, non-joining of public persons in investigation is an unexplained missing link in the prosecution case.
13. It is a well settled position of law that non-joining of public witnesses creates doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case which creates a doubt on the fairness of the investigation Digitally Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 6 of 9 ANEEZA signed by BISHNOI ANEEZA BISHNOI and recovery proceedings. In this regard, it would be apposite to refer to the judgment of Hon'ble High Court of Delhi in Pawan Kumar v. Delhi Administration, 1987 SCC OnLine Del 290, wherein it had been observed as under:
... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 7.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.
Further, in Anoop Joshi v. State, 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi had observed as under:
It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the Digitally Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 7 of 9 ANEEZA signed BISHNOI by ANEEZA BISHNOI police in investigation as a citizen, which is an offence under the IPC.
14. Therefore, the prosecution is required to prove that sincere efforts were made to join independent witnesses and in absence of the same, the prosecution case has to be viewed with circumspection.
15. Now, in the present case only one public witness, that is complainant, has been examined by the prosecution as a witness. It is pertinent to mention that even the complainant himself was examined under Section 299 of Cr.P.C. and thereafter, despite being given several opportunities, he did not appear for undergoing the cross-examination on behalf of the accused. Hence, it can be reasonably concluded that, despite getting opportunity from the Court to cross-examine the complainant, the accused could not exercise the said right due to absence of the complainant himself. Further, even in the charge-sheet and statement of the complainant, it has been categorically stated that the complainant has suspicion upon the accused and mere suspicion cannot be a ground for conviction. The said suspicion of the complainant has remained uncorroborated by any independent witness or any documentary proof. Hence, there is a benefit of doubt qua involvement of the accused in the present offence.
CONCLUSION
16. As per the charge-sheet and the statement of the complainant, the allegations against the accused are based merely on suspicion. It is a settled principle of criminal jurisprudence that suspicion, howsoever strong, cannot take the place of proof. The Digitally signed ANEEZA by Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 8 of 9 BISHNOI ANEEZA BISHNOI alleged suspicion of the complainant has not been corroborated by any independent public witness or supported by any cogent documentary or other reliable evidence on record. In the absence of corroborative evidence and in view of the fact that the sole material witness could not be subjected to cross-examination, the prosecution has failed to prove its case beyond reasonable doubt. Consequently, the accused is entitled to the benefit of doubt regarding his alleged involvement in the commission of the offence.
17. Resultantly, the accused is entitled to benefit of reasonable doubt. The accused Mahender Kumar Pandey S/o Sh. Daya Shankar Pandey is hereby acquitted for the offences under Section 407/34 of the Indian Penal Code, 1860.
Pronounced in open court on 16.12.2025 in presence of accused. This judgment contains 11 pages, and each page has been signed by the undersigned.
(Dr. Aneeza Bishnoi) ANEEZA Judicial Magistrate First Class-05 BISHNOI South East District, Saket Courts, Digitally signed New Delhi/16.12.2025 by ANEEZA BISHNOI Cr. Case8082/2023 State Vs. Vinod Kumar Pandey Page 9 of 9