Delhi District Court
State vs . Shyam Bahadur & Anr. on 30 October, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN MAGISTRATE,
SOUTHEAST, SAKET COURTS, NEW DELHI.
State Vs. Shyam Bahadur & Anr.
FIR No. 443/2008
PS : OIA
U/s. 407/471 IPC
JUDGMENT
A. SL. NO. OF THE CASE : 1458/10
B. DATE OF INSTITUTION : 04.12.2008
C. DATE OF OFFENCE : 22.09.2006
D. NAME OF THE COMPLAINANT : Sh. Ram Pal Singh S/o
Sh. Dayanand
E. NAME OF THE ACCUSED : Shyam Bahadur
S/o Sh. Jang Bahadur
F. OFFENCE COMPLAINED OF : U/s 407/471 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 30.10.2018
Brief Statement of Reasons for Decision :
1. Accused is produced before the Court to stand trial for the offences punishable u/s 407/471 IPC.
2. In brief, facts of the case as per prosecution are that complainant Ram Pal Singh filed a complaint at PSOkhla Industrial Area, on 04.10.2008, wherein he stated that he is in business of transport and that 2 they had to transport rice from Karnal to ICD (TKD), Okhla for M/s Sethia Export Pvt. Ltd. He further stated that for the purpose of transporting the said rice of M/s Sethia Export Pvt. Ltd from Karnal to ICD, complainant send one of their truck bearing No. UP81N9695 to Karnal being driven by accused Shyam Bahadur on 22.09.2008. It is further averred that from there 21.5 tones of rice was packed and was loaded in container No. NKYU3100770 (21 feet) vide invoice no. 5107 dated 15.09.2008 and the container was duly sealed. It is further stated that when the said truck reached at ICD (TKD), Okhla, Delhi on 23.09.2008, on checking it was found that the seal of the container was tampered with and the container was found to be opened. It is further stated that on suspicion, the weight of the goods loaded (rice) was done and it was found that 10 tons of rice was less. It is further stated that said rice was stolen / misappropriated by the driver namely accused Shyam Bahadur.
It is further stated that upon enquiry it was found that the accused Shyam Bahadur alongwith one Pavez has pilfered the rice from the container and sold the same. Upon the said complaint, FIR u/s 407 IPC was registered. Accused Shyam Bahadur was arrested by IO on 05.10.2008 upon the pointing out of the complainant and accused disclosed his involvement in the present offence. It is further stated that accused disclosed his involvement in the said offence alongwith Manish and Pervez however during investigation said coaccused could not be found. It is further stated that upon verification of the driving licence of accused same was found to be forged. Upon completion of investigation, IO filed the chargesheet against accused u/s 420/468/471/474 IPC.
33. Accused Shyam Bahadur appeared before the Court on 17.12.2008 and copy of the chargesheet was supplied to him u/s 207 Cr.P.C. It is further pertinent to state in here that accused Manish was arrested by the IO in the present case and supplementary chargesheet was filed against him u/s 407/120B/420/468/471 IPC. Further accused Pervez was declared PO by the court vide order dated 27.11.2009.
4. It is pertinent to state in here that Ld. Predecessor Court vide order dated 05.12.2014 discharged accused Manish and framed notice u/s 407/471 IPC against accused Shyam Bahadur to which accused pleaded not guilty and claimed trial.
5. In order to prove its case prosecution has examined following witnesses :
5.1 PW1 Sh. Rampal Singh deposed that he was working as a supervisor in Texomash Export Company at D52, Defence Colony. He further eposed that on 22.09.2008, accused Shyam Yadav was working as a driver in the said company and on that day, accused as usual went to bring the rice from Karnal in a container/vehicle. He further deposed that 22 tonnes of rice was loaded in the said vehicle of the accused Shyam Yadav at Karnal and he was required to bring it ICD Tuglakabad, however, when he brought the said vehicle to ICD, on its checking by ICD officials, it was found that 10 tonnes of rice was short in it and that officials of ICD informed the said fact to his company. He further deposed that manager of the said company namely Parshuram went to ICD for the confirmation of the said fact and on the basis of information given by Parshuram to him, he gave a written complaint to SHO PSOIA, 4 Ex.PW1/A. He further deposed that on 05.09.2012, he alongwith IO and 23 police officials went at ICD, where accused was already present and at his instance IO arrested the accused vide arrest memo Ex.PW1/B and seized the DL of accused vide seizure memo Ex.PW1/C. He correctly identified the accused in the court.
5.2 PW2 HC Het Ram proved the FIR Ex. PW2/A. 5.3 PW3 Sh. Parshuram Singh deposed that he was working as a Manager in Texcomash Export and in September, 2008, Shayma Lal Sethia Export Company had hired their truck for supplying of rice to Karnal. He further deposed that the truck was loaded with the rice and on 25.09.2008 reached at ICD, Tuglakabad at around 09:0009:15 am.
He further deposed that he received a call from Supervisor about the theft in the said truck bearing registration no. UP819695 and thereafter, he sent the supervisor Rampal for inquiring about the theft. He further deposed that he went there and weighed the said rice and found that the some rice was stolen as 10 tonnes weight was found less and missing. He further deposed that thereafter he told the supervisor Ram Pal to lodge a complaint regarding this accident before the police. He correctly identified the accused in the court.
5.4 PW4 HC Virender Kumar deposed that on 05.10.2008, he was posted as HC at PSOIA and on that day, he alongwith SI Kuldeep went for investigation/inquiry regarding this case at ICD/TKD where they met complainant Rampal Singh and he informed them that the truck bearing registration no. UP81N9695 was standing with accused Shyam Bahadur at the parking. He further deposed that he also informed them that the said truck was brought by the accused from Karnal, Haryana and was loaded with rice and that some rice were stolen i.e. about 21.5 5 tonnes. He further deposed that thereafter, they inquired and arrested the accused vide arrest memo Ex.PW1/B, prepared the disclosure statement Ex.PW4/A, pointing out memo ExPW4/B, seizure memo and personal search memos Ex.PW1/C and Ex.PW4/C. He correctly identified the accused in court.
5.5 PW5 Rajender Prasad deposed that On 22.09.2008, he was working as supervisor in Chaman Lal Setia Exports Ltd and his company was doing business of export of rice. He further deposed that on that day 210 quantile load of rice was loaded in a container which was further loaded on truck bearing registration no.UP81N9695 of Taxco Mash Export Logistics from Karnal, Haryana and the driver of the said truck was Shyam Bahadur. He further deposed that container was to be delivered at ICD, Tuglakabad, New Delhi and delivery challan, gate pass, packing list and export invoice of the said rice are Mark 'A', 'B', 'C' and 'D'. He further deposed that the container was weighed at ICD, Tuglakabad where shortage of 10 tonnes of rice was discovered.
5.6 PW6 Jitender Kumar Dixit, Jr. Asst. RTO Office, Agra deposed that as per the record Ex. PW6/A, driving license number 17721/AG/07 issued from ARTO, Agra in the name of Mithlesh Deshwari, w/o R. S Chaudhary on 21.02.2007. He further deposed that as per the record, driving license mark X was not issued from their department.
5.7 PW7 SI Kuldeep Singh deposed that on 04.10.2008 he was posted as SI in PSOIA and on that day he received written complaint Ex. PW1/A regarding stolen/misappropriation of rice on which he made endorsement and FIR in the present case has been registered.
6He further deposed that the further investigation in the present case was marked to him and on 05.10.2008 he alongwith HC Virender departed for the investigation of the case and reached at ICD Tughlakabad where they met the complainant Rampal Singh. He further deposed that thereafter he alongwith HC Virender and complainant reached at the parking of ICD Tughlakabad and complainant Rampal pointed out towards accused and he apprehended accused with the help of HC Virender who informed his name as Shyam Bahadur Verma. He further deposed that thereafter he interrogated the accused and recorded disclosure statement of accused which is already Ex. PW4/A, conduct his personal search Ex. PW1/B and PW4/C, seized the DL of accused vide memos Ex. PW1/C. He further deposed that thereafter accused was produced before the court and took 4 days PC remand of the accused to recover the stolen property. He further deposed that thereafter he prepared the pointing out memo Ex. PW4/B. He further deposed that during the course of investigation he also verified the DL of accused from Licensing Authority, Agra vide application Ex. PW6/D and was found to be forged. He further deposed that during the course of investigation he also collected invoicecumdelivery challan and documents of goods. He further deposed that during the course of investigation he also collected the employment proof of accused from Texcomash Export. He further correctly identified the accused in the court.
6. Statement of accused u/s 313 C.R.PC. was recorded on 30.08.2018 to which the accused denied all the allegations as leveled upon him by the prosecution and stated that he has been falsely implicated in the present matter. Accused further choses not to lead any 7 defence evidence and the matter was listed for final arguments.
7. I have heard the Ld. APP for State and counsel for accused and perused the case file carefully.
8. It is argued by the Ld. APP for the state that testimony of PW1 and PW3 as well as document MarkA & B goes to show that the goods were dispatched by vehicle bearing no. UP81N9695 and the same was being driven by accused Shyam Bahadur. He further argued that when the same reached at ICD Depot, Tughlakabad, 10 tons of rice was found to be missing. He further argued that testimony of PW6 that license so found from the possession of accused was forged and fabricated and prosecution has able to prove its case beyond reasonable doubt and accused is liable to be convicted for the offences he is charged for.
9. On the other hand, It is argued by the counsel for the accused that there are several discrepancies in the testimony of prosecution witnesses. He further argued that there is no document placed on record by the complainant in support of his case. It is further argued that licence alleged to have been recovered from the possession of accused was not shown in personal search memo and prosecution has failed to prove its case and as such accused is entitled to be acquitted.
10. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond reasonable doubts. It is the case of the prosecution that accused Shyam Bahadur was employee of complainant company and that he was assigned to transport 21.5 tons of Basmati rice 8 in truck bearing no. UP81N9695 from Karnal to ICD (TKD) Depot, Tughlakabad, however when the same reached at (TKD) on 23.09.2008 it was found that seal of the container was tempered with and when the goods were weighed it was found that 10 tons of rice was less. It is further the case of prosecution that accused was driving the said vehicle with forged Driving Licence. As such it was for the prosecution to prove that :
a) That accused was entrusted with 21.5 tones of rice.
b) That accused was the driver of the truck bearing no.
UP81N9695 carrying rice assigned by the complainant company which was to be delivered to ICD (TKD).
c) That when the container reached at its destination, it was found that 10 tones of the said rice was missing.
d) That the accused has stolen the 10 tones of rice.
e) That accused was having a forged Driving Licence at the time of incident.
11. In order to prove that the accused is the driver of the offending truck at the relevant point of time prosecution has examined PW1 Rampal Singh as well as PW3 Purshuram Singh, both of them working with Texso Mash Export company and both of the said witnesses corroborated the case of prosecution. Prosecution has further examined one Sh. Rajender Prasad as PW5 who was working as supervisor with Chaman Lal Setiya Export Ltd. who deposed that 210 quintal of rice was loaded in container and same was to be delivered at ICD Tughlakabad.
912. As such, it was for the prosecution to show that accused was employed as a driver with the complainant and that he was assigned the work to deliver the goods from Karnal to ICD, Tughlakabad in the truck bearing no. UP81N9695. In order to prove the same, the prosecution has examined Sh. Rampal Singh as PW1 and Sh. Purshuram Singh as PW3, both of them have stated that accused Shyam Bahadur was driving the vehicle at the time of alleged incident. Further PW3 have stated that he himself have employed accused. Further SI Kuldeep, IO of the present case who deposed as PW7 during the course of his deposition have stated that he collected the employment proof of the accused from complainant company.
It is pertinent to state in here that apart from the oral testimony, there is no appointment letter or employment proof of the accused is placed on record. With regard to the document stated to be employment proof of the accused with the complainant company by the IO, perusal of same reveals that same is certificate issued by the complainant company wherein it is stated that accused was employed with the complainant company and that he was driving the truck bearing no. UP81N9695 from Delhi to Karnal. The said certificate / document by no stretch of imagination can be said to have a document of appointment letter. Further from the perusal of same it is not clear as to whether the same was executed prior or subsequent to the alleged offence.
Furthermore PW3 in his testimony has himself stated that he did not maintain any record with regard to employment of accused with him.
13. It is further for the prosecution to show that accused herein was assigned to deliver the rice from Karnal to ICD TKD Okhla in truck 10 bearing no. HR81N9695 or that he was driving the said truck at the said point of time. Again there is no eyewitness produced by the prosecution in order to show that the said container containing rice was being driven by the accused from Karnal to ICD, TKD Okhla.
In view of the same, the prosecution has failed to show that accused was employed as a driver with the complainant company.
14. It is further for the prosecution to show that on the alleged date 21.5 tons of rice was loaded in truck no. UP81N9695 which was being driven by the accused from Karnal to ICD, Tughlakabad. In order to prove the same, the complainant has placed on record bill dt. 22.09.2008, packing list of invoice no. 5107 as well as invoice no. 5107. It is pertinent to state in here that complainant has placed on record the photograph of abovesaid documents and original of the same were never brought on record. Although perusal of same reveals that 208.84 quintal of Basmati Rice was loaded in vehicle no. UP81N9695 which is to be delivered from Karnal to ICD, Tughlakabad, however nothing in the said document goes to suggest that the said vehicle was being driven by the accused at the relevant point of time. It is further pertinent to state in here that there is not even an iota of documentary evidence placed on record by the prosecution in order to show that upon the weighing the material loaded in the said truck at ICD, Tughlakabad, 10 quintal of rice was found to be short.
As such there is nothing on record which could show that accused was driving the vehicle at the relevant point of time or that upon the checking the material was found to be short in quantity. It is further pertinent to state in here that no photograph or document of ownership of 11 vehicle bearing no. UP81N9695 has been placed on record by the prosecution.
15. It is further pertinent to state in here that as per the complaint itself, the fact regarding the alleged theft came within the knowledge of complainant on 23.09.2008, however the present complaint was filed by the complainant before the police on 04.10.2008 i.e. after the lapse of about more than 10 days. There is no explanation given by the complainant with regard to delay of more than 10 days in lodging of FIR against the accused. The unexplained delay is further fatal to the case of prosecution. In this regard, I may refer to the observations made by Hon'ble Apex Court in State of H.P. v. Gian Chand, (2001) 6 SCC 71 it was observed by Hon'ble Apex Court:
12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.......
16. It is further alleged against the accused that he was apprehended from ICD, Tughlakabad on 05.10.2008 and upon his personal search, the DL was found, which upon verification was found to be forged. In order to prove the same, prosecution has examined PW6 Jitender who had stated that licence no. 17721/AG/07 was issued in the name of one Mithlesh and not Shyam Bahadur. It is pertinent to state in here that 12 accused herein was charged u/s 471 IPC i.e. for dishonestly and fraudulently using the forged document as genuine. Although it is pertinent to state in here that there is no independent witness of the alleged recovery of licence from the accused, however even if for the sake of arguments it is believed that the said licence was recovered from the possession of accused, there is nothing on record to show that same was being used by the accused in any manner or that the factum regarding forged and fabricated document was well within his knowledge. Considering the same, the provisions of section 471 IPC does not apply in the present case.
17. Considering the law and facts stated above, the prosecution has miserable failed to prove its case beyond reasonable doubts and accused Shyam Bahadur stands acquitted for the offence he was charged for.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 30.10.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 12 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE02 SOUTHEAST, SAKET COURTS, NEW DELHI