Delhi District Court
State vs . Bhola Nath Etc on 19 November, 2012
"IN THE COURT OF SHRI SUNIL GUPTA, M.M (NE)
KARKARDOOMA COURTS, DELHI"
FIR No. : 371/04
U/s : 420/406/411/34 IPC
P.S : Seemapuri
State Vs. Bhola Nath etc
Unique Case ID No. 02402R0643392005
J U D G E M E N T
1. Sl. No. of the case : 227/05
2. Date of institution of the case : 01.09.2005
3. Name of complainant : State
4. Date of commission of offence : 08.07.2004
5. Name of accused, parentage & address : 1) Bhola Nath Yadav s/o
Baij Nath r/o 88D,
PocketI, Dilshad Garden,
Delhi.
2) Smt Hemlata w/o Bhola
Nath r/o 88D, Pocket I
Dilshad Garden, Delhi.
6. Offence complained of or proved : 420/406/411/34 IPC
7. Plea of accused : Accused persons pleaded
not guilty
8. Final order : Convicted
9. Date of which order was reserved : 05.11.2012
10.Date of pronouncement : 19.11.2012
BRIEF REASONS FOR THE DECISION OF THE CASE
1. The case of the prosecution in brief is that on 08/7/2004 at about FIR No. 371/04 1 of 20 2.45 pm at H.No. M26/A2, Dilshad Garden, Delhi both accused persons dishonestly induced the complainant Smt Usha Rani in order to deliver the gold jewelery i.e. one pair golden Jhumki, two golden rings which is capable of being created as valuable security and both the accused persons converted the same to their own use. It is further alleged that on 30/11/2004 at 88/D, PocketI, Dilshad Garden, Delhi both accused persons during PC remand got recovered one golden ring each, belonging to the complainant.
2. After the registration of FIR the IO investigated the present case and filed the charge sheet against the accused persons Bhola Nath and Smt Hemlata. After supplying of documents, and Ld. Predecessor was pleased to frame a separate charge u/s 420/406/411/34 IPC against the accused persons on 02/8/2006 to which the accused persons pleaded not guilty in respect of the allegations and claimed trial.
3. To prove its case prosecution has examined as many as ten witnesses in all.
PW 1 Smt Usha Rani, the complainant in the present matter and proved his statement Ex PW 1/A. PW 2 ASI Gian Prabha, the DO in the present matter and FIR No. 371/04 2 of 20 proved the FIR Ex PW 2/A. PW 3 Sh. Kamal Babbar, who joined the investigation in this case and proved the seizure memo Ex PW 3A and PW 3/B. PW 4 Lady Ct Vatan Devi, who joined the investigation with IO/SI Kiran Pal and proved the arrest memo and personal search memo Ex PW 4/A, Ex PW 4/B and Ex PW 4/C and PW 4/D and disclosure statements Ex PW 4/E and Ex PW 4/F. PW 5 Lady Ct Santosh, who also joined the investigation with IO/SI Kiran Pal and proved the disclosure statement Ex PW 5/A. PW 6 Ct Jasbir Singh was the memeber of the police party who took the accused persons to their house for recovery during the police remand. Witness has proved the disclosure statement Ex PW6/A. PW 07 Ms. Ruby Alka Gupta, Ld. PM, Juvenile Justice Board, who proved the TIP proceedings Ex PW 07/A, certificate to this effect Ex PW 07/B and application of IO for conducting the TIP Ex PW 07/C. PW 8 SI Kiran Pal, the first IO in the present matter and has deposed regarding the steps taken by him during investigation.
PW 9 Ct Dinesh Kumar, who received the copy of FIR from DO and handed over the same to IO and joined the investigation.
FIR No. 371/04 3 of 20 PW 10 SI Pramod Anand, the second IO in the present matter and has deposed regarding the steps taken by him during investigation.
4. After conclusion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C on 15/02/2012 wherein they pleaded their innocence and claimed that police falsely implicated them in this case with the connivance of the complainant. Accused persons led defence evidence in their favor and examined DW1 Sh. Pritam Chand and DW2 Sh. Bhola Nath i.e accused himself.
5. I have heard the argument of Sh. Rakesh Kumar, Ld. APP for state and Sh. S.K. Ahluwalia, Ld. defence counsel and have perused the case file carefully.
6. In this case, charges under Section 406/411/420 IPC has been framed against both the accused persons i.e Bhola Nath and Hemlata. So, the evidence on record is being discussed under following three heads :
1) whether any property belonging to complainant was recovered from the possession of the accused persons;
2) how the property came into the possession of the accused persons;
FIR No. 371/04 4 of 20
3) what was the intention of the accused persons at the time when the property came into their possession.
It is clear that the question no. 1 & 2 will be discussed only if the question no. 1 is proved affirmative.
1) Whether any property of complainant was recovered from the possession of the accused persons The prosecution has examined four witnesses i.e PW3 Sh. Kamal Babbar, PW5 Lady Ct. Santosh, PW6 Ct. Jasbir Singh and PW8 SI Kiran Pal to prove that the case property i.e two golden rings, recovered from the possession of the accused persons.
PW8 SI Kiran Pal has deposed that "................ and Lady Ct Santosh and he took out both the accused persons from lock up and they were interrogated by the IO. He proved the disclosure statement of both the accused persons Ex PW 5/A and PW 6/A. He further deposed that both the accused persons took them to their house at 88/D, PocketI, Dilshad Garden, Delhi where accused Hemlata took out one golden ring from her bed which was wrapped in a paper and the accused Bhola Nath also got recovered another golden ring from inside Almirah of the room. He deposed that both the rings belonging to Smt Usha Rani and the rings were kept in white color pullanda FIR No. 371/04 5 of 20 separately and same was seized vide seizure memo Ex PW 3/B. Witness correctly identified both the accused persons."
PW3, PW5, & PW6 has also deposed on the same lines. Ld. Counsel for the accused has disputed the recovery and also the claim of the complainant PW1 Smt Usha regarding the ownership of the recovered case property. It has been submitted on behalf of the accused that PW3 Sh. Kamal Babbar in his crossexamination dated 07.12.2011 deposed that the complainant accompanied the police along with the accused persons and went to the house of the accused persons for recovery of the case property while the complainant in her testimony has submitted that she has not accompanied the police persons. Also, PW5, PW6 & PW8 in their testimony has submitted that the complainant was not accompanying them. Further, it has been submitted by the PW3 in his crossexamination that the case property was shown and it was identified by the complainant Usha after its recovery from the possession of the accused persons which is again a contradiction from the testimony of other PW5, PW6 & PW8. It has further been submitted that as the case property was shown to the PW1 Smt. Usha earlier, so there is no sanctity of the TIP conducted subsequently. Further, no documents regarding proof of FIR No. 371/04 6 of 20 ownership has been produced by the complainant, so if the TIP has no sanctity, then there is absolutely no evidence on record to connect the complainant with the case property.
Now, PW3 has deposed that in the month of November, 2004 on the request of police he joined the investigation of this case and he alongwith SI Kiran Pal and accused persons went to the house of accused persons i.e 88/D, Pocket I, Dilshad Garden, Delhi. He further deposed that accused Hemlata got recovered one gold ring from under the bed and produced before police and accused Bhola Nath also got recovered one gold ring from iron Almirah in the bed room and both rings were sealed with the seal of KP of the IO and seal after use was given to one police official. Witness proved the seizure memo Ex PW 3/A and PW 3/B. Witness correctly identified the accused persons in the court.
PW3 has fully supported the case of the prosecution during his examination in chief but his crossexamination was conducted after about 3 years. It is well settled law that in case there are contradictions in the testimony of the witness where there is gap in examination in chief and crossexamination of witness then those contradictions can be ignored and his examination in chief should be FIR No. 371/04 7 of 20 looked by the court. Khuji vs. State of M.P, AIR 1991 SC 1853 is the case in which the Hon'ble Supreme Court of India held as above. In that case, the Court observed as under : " The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examinationinchief, something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in crossexamination on he question of identify of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examinationinchief"
So, the contradictions in the crossexamination of PW3 and testimony of the police officials are of no substance. As the case property was not shown to the PW1 before the TIP, so the sanctity of the TIP cannot be stated to be of no value and the same stands proved. Further, it is true that that no document regarding ownership has been produced by the complainant but the complainant has correctly identified the case property in TIP and that is sufficient to assume that she is the owner of the case property.
In view of the above discussion, it stands proved that the case property i.e two golden rings belonging to PW1 Smt. Usha was in FIR No. 371/04 8 of 20 fact, recovered from the possession of the accused persons Bhola Nath and Hemlata during their police remand on 30.11.2004
2) How the property came into the possession of the accused persons The prosecution has examined PW1 to prove the manner in which the property came into possession of the accused persons.
"PW1 has deposed that on 08.07.2004 she was present in her house, the accused Bhola Nath and his wife Hemlata were known to her prior to this incident as Smt Hemlata was running a beauty parlor titled as Komal Beauty Parlor at M32, A6, both the accused persons came to her residence at about 2:35 pm and both the accused persons asked her that they had to attend a party in Ashoka Hotel and requested her to give ear rings (jhumki) and two rings. She further deposed that on her refusal, accused Bhola Nath again requested that they would returned back the same on 10/7/2004 after attending the party, she trusted them and handed over her one pair golden jhumki and one golden ring to both the accused persons. She deposed that on 10/7/2004 both the accused persons did not come and on 11/7/2004 when when she went to the flat of accused persons, she found their flat locked, and she had tried to trace them at 88D, IPocket Dilshad Garden, which was also found locked and she FIR No. 371/04 9 of 20 further tried to trace them at many places but in vain. She further deposed that after sometime she went to the police station and lodged her complaint and police got recovered two golden rings from the accused persons which she identified in TIP which she obtained on superdari vide superdiginama Ex PW 1/A."
Ld. Counsel for the accused has submitted that this is a false testimony of the PW1 as on the relevant date the accused was not at his house. The accused persons has examined two witnesses i.e DW1 Sh. Pritam Chand & DW2 Bhola Nath, the accused himself. In his deposition DW1 has deposed as under : " that he and accused Bhola Nath were in service in MTNL. Accused Bhola Nath is his friend and they both were posted in the year 2004 at North Block. On 03.07.2004, accused Bhola Nath Yadav came to his house in evening. Bhola Nath was upset and told him that some persons of the colony harassing him and he would like to stay at his residence for few days. Bhola Nath used to talk to his family on his telephone and informed him that they want to got to their native place in U.P. On 07.07.2004, at about 8.00 am, they left for ISBT Anand Vihar, Delhi and reached there at about 8.45 am and accused Hem Lata along with her young son Rohit met them. He left them at ISBT Anand Vihar and left for his office. Thereafter, Bhola Nath came to the office till December 2004."
DW2 Sh. Bhola Nath has deposed as under :
FIR No. 371/04 10of
20
" In the year 2004 I was residing at 88D, Ipocket, Dilshad
Garden, Delhi and i was employed with M.T.N.L, Delhi. My wife namely Hemlata was running a beauty parlor in Dilshad Garden, Delhi. I have purchased a house and due to financial problem I had taken a loan. I was having money transaction with two persons namely Brijesh Jain and Sh. J.C. Sharma. I had given three cheques i.e one for Rs. 15,000/ and two for 10,000/ each to Sh. J.C Sharma and also given one blank cheque and stamp paper to Sh. Brijesh Jain. They were aware about my financial problem and they wanted to grab my house. They used complainant Smt. Usha Rani PW as a tool against me and gave her my cheque. She started blackmailing me and demanded Rs. 1,50,000/ from me. She threatened me that in case I refused to give Rs. 1,50,000/ to her, she will get me involve in criminal cases and then you shall be sent to jail. Smt. Usha also threatened to get my children kidnapped. I was scared of Smt. Usha and out of fear I left my house on 03.07.2004 and started living with my friend Sh. Pritam Chand who was the resident of Amar Colony being my colleague. On 06.07.2004, Smt. Usha again threatened my wife on telephone at our house. On receipt of this threat, I decided to leave Delhi for some time and shifted to my native place i.e Village Bakhtari, district Jaunpur, U.P. On 07.07.2004, in the morning time, I asked my wife to reach ISBT Anand Vihar with our younger son namely Rohit. I requested Sh. Pritam Chand to drop me at ISBT, Anand Vihar as I was afraid of Smt. Usha. We left the house of Sh. Pritam Chand at about 8.00 am, and reached ISBT Anand Vihar at about 8.45 am. My wife and son were already present there and at about 9.30 am we all left for our native place by U.P. Roadways bus. I had purchased three tickets and the said three originals tickets are FIR No. 371/04 11of 20 Ex. DW2/A ( collectively). We reached at Kanpur in the late evening and reached our native place on next morning. We returned to Delhi in the end of August 2004. Then I came to know that Smt. Usha had got registered an FIR against me. We remained out of Delhi from 07.07.2004 to end of August 2004. I had not taken any jewelry from Smt. Usha. ( objected to as it is a leading question ). I was forced to sell my house at cheaper price".
In view of the above, the Ld. Defence Counsel has submitted that on the relevant date when none of the accused was present in Delhi, so how come they go to the complainant and get the case property as alleged by the prosecution. Reliance has been placed upon the bus tickets placed on record. Both the DWs i.e DW1 and DW2 have been crossexamined at length by Ld. APP for State and it has come into the crossexamination of DW1 that he has not seen the accused persons accompanied by their child boarding the bus as he has left before that.
7. The bus tickets on record does not inspire much confidence as nothing has come on record to show that these tickets were in fact issued to the accused persons only and not to anybody else. Also, no other witness regarding the presence of the accused persons on the day of incident i.e.,08.07.2004 at Jaunpur has been examined. So, FIR No. 371/04 12of 20 plea of alibi taken by the accused persons stands rejected. It stands proved that the case property came into the possession of the accused persons by inducement as deposed by PW1 in her testimony.
3) What was the intention of the accused persons at the time when the property came into their possession-- Now, the crucial question is that what was the intention of the accused persons at the time when property came in their possession. It is a settled law that intention is not something which can be proved as such rather it is to be gathered from the facts and circumstances of the case. In this case also, PW1 Smt. Usha was induced to hand over the case property i.e two golden rings by the accused persons and same was not returned till the recovery of the same from the house of the accused persons by the police people.
The complainant PW1 Smt Usha Rani, whose testimony is to be scrutinized for gathering the intention of the accused persons deposed as under : " .................On my refusal, accused Bhola Nath again requested that they would returned back the same on 10.07.2004 after attending the party, I trusted them and handed over my one pair golden jhumki and one golden ring to both the accused persons. When on 10.07.2004 both the accused persons did not come and on FIR No. 371/04 13of 20 11.07.2004 when I went to the flat of accused persons, I found their flat locked, and I had tried to trace them at 88D, IPocket Dilshad Garden, which was also found locked. I further tried to trace them at many places but in vain................."
The fact that both the accused persons went to the house of the complainant and on the initial refusal of the complainant to hand over the property the persuasion by the accused Bhola Nath coupled with the fact that they both vanished from their known addresses and were not traceable there on 11.07.2004 is sufficient to prove that the couple acted dishonestly from the very beginning with the common intention to cause wrongful gain to themselves in terms of Section 23 & 24 IPC Now, the Ld. Defence Counsel has submitted that there is huge delay in registering the FIR by the complainant as the property was delivered to the accused persons on 08.07.2004 and the FIR for the same was registered on 24.08.2004 after a gap of about 45 days, and the delay is unexplained. He has further submitted that the delay is fatal to the case of the prosecution and accused are liable to be acquitted.
It is true that there is delay in lodging the FIR. But it has been held by Hon'ble Supreme Court of India that if the delay in lodging FIR No. 371/04 14of 20 FIR is explained then it is not fatal to the case of the prosecution. At this juncture, the following passage from State of Himachal Pradesh v. Gian Chand (2001) 6 SCC 71, is worth mentioning wherein Hon'ble Supreme Court of India has observed:
"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 plausible 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. "
8. PW1 in her testimony has stated that she was waiting for the accused persons as they were her neighbor but when they did not return, she lodged the complaint.
In view of this court, if something is delivered to a neighbor, then the concerned person will wait for a longer period in natural course of event before moving to police for registering of case.
FIR No. 371/04 15of 20 So the delay stands explained.
Now, as mentioned in the beginning of the discussion, charges for the three offences has been framed against both the accused persons i.e for the offences under Section 406/411/420/34 IPC. Section 406 IPC provides punishment for criminal breach of trust which is defined under Section 405 IPC.
Section 405 IPC reads as under : Criminal breach of trust Whoever, being in any manner entrusted with property,or with any dominion over property, dishonestly, misappropriates or convert 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, express or implied, which eh has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "
criminal breach of trust".
Now, in the case at hand even if it is presumed that the property was entrusted to the accused persons by the complainant, then too neither there was any direction of law prescribing the mode in which such trust was to be discharged nor was there any legal contract express or implied touching the discharge of such trust. So, offence FIR No. 371/04 16of 20 under Section 406 IPC is not made out.
As far as Section 411 IPC charged against the accused persons is concerned, it would be in the fitness of things to lay down the legal provision as under: Section 411 IPC reads as under : Dishonestly receiving stolen property Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. The stolen property has been defined in Section 410 IPC Section 410 IPC reads as under : Stolen property Property, the possession whereof has been transferred by theft, or by extortion,or by robbery and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property', [ whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then cases to be stolen.
9. Now, in this case, the property has not come in the possession of FIR No. 371/04 17of 20 the accused persons by theft or extortion or robbery or criminal misappropriation or criminal breach of trust. So, offence under Section 411 IPC is not made out.
10. Section 420 IPC reads as under: Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The cheating has been defined under Section 415 IPC which provides as under : Section 415 IPC Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or FIR No. 371/04 18of 20 property, is said to "cheat".
11. The ingredients of cheating were laid down in Ramjas vs. State of U.P AIR 1974 1811 as under :
(i) There should be fraudulent or dishonest inducement of a person by deceiving him;
(ii)(a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii)In cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
12. The illustration (f) to Section 415 IPC provides as under : A intentionally deceives Z into a belief that A means to reply any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
13. In view of the discussion above under three seperate heads, it is clear that the accused persons also deceived the complainant Smt. Usha into a belief that they meant to return the articles that the complainant will lend to them and thereby dishonestly induced the complainant to lend them the articles. Also, there was no intention to FIR No. 371/04 19of 20 return the articles and for that reason both the accused persons fled away from their house. The part of the cheating whereby the person deceived is induced to deliver any property has been made separately punishable under Section 420 IPC mentioned above and in view of the discussion above, all the ingredients of Section 420 IPC has been proved by the prosecution beyond reasonable doubts.
14. So, this Court holds both the accused persons Bhola Nath and Hemlata convicted for the offence under Section 420/34 IPC. They are acquitted of the offences under Section 406/411/34 IPC.
To come up for order on point of sentence on 22.11.2012. Dictated & Announced in the open Court on 19.11.2012 ( SUNIL GUPTA ) METROPOLITAN MAGISTRATE(NE) KKD COURTS, SHAHDARA, DELHI FIR No. 371/04 20of 20