Delhi District Court
State vs : Mahender Singh & Anr. on 27 May, 2015
IN THE COURT OF SH. SUDHANSHU KAUSHIK : ACMM-01 : CENTRAL
DISTRICT : TIS HAZARI COURTS : DELHI
State Vs : Mahender Singh & Anr.
FIR No. : 34/1997
U/s : 407/468/471 IPC
PS : Nabi Karim (Crime)
Unique Identification No. 02401R0014442005
Date of Institution: 16.07.1998
Date of Judgment reserved on: 18.05.2015
Date of Judgment: 27.05.2015
Brief details of the case
A. Sl. No. of the case 000518/P
B. Offence complained of
or proved U/s 407/471/34 IPC
C. Date of Offence Between 10.01.97 to 20.01.97
D. Name of the complainant Sh. Naresh Sharma
Regional Manager
Ritu Road Lines Pvt. Ltd.,
7530, Galaxy Apartment, Tel
Mil Gali, Ram Nagar,
Paharganj, New Delhi
E. Name of the accused (1) Mahender Singh @ Manjeet (PO)
S/o Sh. Bhale Ram,
R/o Vill. Khatkar, PS Uchana,
Distt. Jind (Haryana)
(2) Satyawan Singh
S/o Sh. Ranjit Singh,
R/o Village Bamnauli,
PS Bahadurgarh Sadar,
Distt. Rohtak (Haryana)
F. Plea of the accused Pleaded not guilty
G. Final order Convicted under Section 411 IPC
H. Date of Order 27.05.2015
FIR No.34/1997 State Vs Mahender Singh & Anr. Page 1 of 18
Judgment
On the accusation of acting in furtherance of their common intention and
committing criminal breach of trust in respect of a consignment containing 360 bags
of PVC which were entrusted to them as carrier, accused Mahender (driver) and
Satyawan Singh (owner of the truck) were sent up to face trial for committing
offences punishable under Section 407 IPC read with Section 34 IPC. Apart from this,
it was also alleged that both the accused fraudulently and dishonestly prepared forged
documents of truck bearing registration No.HR-12-1224 on which the consignment
was loaded and used those forged documents as genuine. Charges under Section
468/471 IPC read with Section 34 IPC were also pressed against them.
Brief facts as unfolded during the trial
2. The case of prosecution as revealed from the charge-sheet is that PW-1
Naresh Sharma (hereinafter referred to as ' complainant' ) was the Regional Manager
of Ritu Roadlines Pvt. Ltd. (hereinafter referred to as ' company' ) having its office at
7350, Tel Mil Marg, Ram Nagar, Paharganj, New Delhi. The branch office of the
company at Suraj (Gujrat) hired a truck bearing registration No.HR-12-1224 from
Hissar-Bhiwani Roadlines, Kadodara for transporting a consignment of 360 bags of
PVC weighing around 9 metric tonnes from Reliance Industries Ltd., Hazira to its
office at Paharganj, New Delhi. On 26.12.1996, Sh. Ravinder Sharma (PW-15),
Loading Clerk of the company, accompanied the driver (accused Mahender) of the
truck to the office of Reliance Industries Ltd., Hazira from where the consignment
was loaded and the truck was dispatched. When the truck did not reach its destination
on the scheduled time, the complainant got suspicious and lodged a report with the
police. On the said complaint, present FIR bearing No.34/1997 under Section
FIR No.34/1997 State Vs Mahender Singh & Anr. Page 2 of 18
407/468/471 IPC was registered at Police Station Nabi Karim and investigation was
assigned to SI K.L.Yadav (PW-11) who was posted at Anti Robbery Cell, Crime
Branch. Documents vide which the consignment was loading on the truck including
the consignment note and invoices were seized. Efforts were made to trace the stolen
truck and misappropriated consignment but no clue was found.
3. The prosecution' s case proceeds further that on 20.01.1997, SI
K.L.Yadav received information from Sat Bhagwan Sharma that the stolen truck can
be found parked at Mahipal Pur Road, near Vasant Kunj Apartments. After reducing
this information in writing vide DD No.6, SI K.L.Yadav constituted a team and
proceeded towards pre-disclosed spot where Sat Bhagwan Sharma met the police
officials and pointed towards a parked truck. In the meantime, Mahender Singh came
out of a nearby sweet shop and police officials arrested him while he was about to
start his vehicle. During interrogation, Mahender made disclosure about his
involvement and took the police party to the house of Satyawan located at Bamnauli
Village, PS Bahadurgarh, Distt. Rohtak (Haryana) from where 360 bags of
misappropriated consignment were recovered. The recovered bags were deposited at
the Malkhana of Police Station Nabi Karim. One bag was retained as sample while the
remaining bags were released on superdari. Statement of witnesses were recorded and
necessary documentation was done. It was revealed during investigation that the
actual registration number of the truck was DNG-0844 but in order to deceive the
complainant, both the accused changed the registration number to HR-12-1224 by
preparing forged documents and super-embossing a different chassis number.
Investigation qua the aspect of forgery and preparation of forged documents was
carried out and after conclusion of investigation, charge-sheet was put to the court.
FIR No.34/1997 State Vs Mahender Singh & Anr. Page 3 of 18
4. Copies of the charge-sheet were supplied to both the accused and charges
under Section 407/471 IPC read with Section 34 IPC were framed against them to
which they pleaded not guilty and claimed trial. Mahender Singh remained absent
during trial and vide order dated 24.04.2009, he was declared a Proclaimed Offender.
Trial proceeded and concluded qua accused Satyawan who was convicted under
Section 411 IPC by this court itself but the matter was remanded back by the appellate
court of Sh. Narender Kumar, Ld. ASJ (Central), Delhi with directions to summon
PW-1 Naresh Sharma and afford an opportunity to the accused to cross examine this
witness. Directions were given by the appellate court to decide the matter afresh in the
light of cross examination done by the accused.
Witnesses examined
5. Fifteen prosecution witnesses were examined.
Witnesses from the company
PW-1 Naresh Sharma (Complainant/Regional Manager, Ritu Road Lines
Pvt. Ltd.) mentioned about the entrustment part. He stated that the truck containing
360 bags of PVC weighing around 9 metric tonnes was entrusted to Manjeet Singh @
Mahender. He mentioned that documents of the truck depicted that Devender Singh
was the owner while Mahender was the driver of the truck. He mentioned about
lodging complaint with the police. Pursuant to the orders of the appellate court, the
witness was recalled for cross examination and to some extent, he twisted his earlier
statement mentioning this time that he did not accompany the police party to the
house of accused Satyawan.
PW-4 Om Prakash Sharma (Director, Ritu Road Lines Pvt. Ltd.)
supported the version of Naresh Sharma by deposing on same lines.
FIR No.34/1997 State Vs Mahender Singh & Anr. Page 4 of 18
PW-16 Ravinder Sharma (Employee of Ritu Road Lines Pvt. Ltd.)
supported the prosecution' s case mentioning that consignment was entrusted to
Manjeet @ Mahender. He mentioned that he accompanied Mahender to the factory of
Reliance Industries Ltd. at Hazira from where 360 bags of PVC were loaded on the
truck and at that time, an associate of this accused also accompanied them.
Witnesses of forged documents
PW-3 Major Singh (Licensing Clerk, SDM Office, Rohtak) mentioned
that according to the records of Transport Authority, a Padmini Car was awarded the
registration number HR-12-1224.
PW-5 Dr. Rajender Singh (Principal Scientific Officer, CFSL)
mentioned that he examined the chassis number of the truck bearing registration
number HR-12-1224 and found that it had been tampered. The report submitted by
him is Ex.PW-5/A.
PW-7 A.K.Gupta (Director-Incharge - Retd., FSL) mentioned that the
handwriting of Manjeet @ Mahender was found on the forged documents.
PW-10 Jagram (Assistant, State Transport Department, Chandigarh)
deposed that the permit of truck was forged.
PW-15 Sampat Naik (MLO, Headquarters, Delhi) brought the record of
truck bearing Registration No. DNG-0844 to demonstrate that the said vehicle was
purchased by Satyawan Singh. He stated that the registration number was allotted by
the transport authority of Rajpur Road.
Police Witnesses
PW-2 Ct. Nagender Kumar (Witness of arrest of Manjeet @ Mahender)
stated that after arrest, Mahender disclosed the actual registration number of his truck
FIR No.34/1997 State Vs Mahender Singh & Anr. Page 5 of 18
as DNG-0844. He stated that the forged documents of the truck were seized in his
presence.
PW-6 HC Narender Singh (Duty Officer) mentioned about registration of
FIR. Copy of FIR is Ex.PW-6/A.
PW-8 HC Darshan Kumar (Witness of arrest) stated that Satyawan
surrendered at Police Station Crime Branch, R.K.Puram and he was arrested by IO/SI
K.L.Yadav vide arrest memo Ex.PW-8/A.
PW-14 HC Rajender Singh (Witness to the seizure memo of forged
documents) stated that the documents were seized in his presence.
PW-11 Insp. K.L.Yadav (Investigating Officer) justified the
investigation carried out by him. He gave a detailed account of the recovery made
from the house of Satyawan. He mentioned that it was revealed during investigation
that the ration card at the address of House No.56, Gali Bamnauli has been issued in
the name of Satyawan.
PW-9 ASI (Retd.) Karan Singh (Recovery witness) mentioned that on
23.01.1997, Mahender @ Manjeet took the police party to H.No.56 at Village Bamnauli from where 360 misappropriated bags were recovered and at that time, complainant was also accompanying the police party. He mentioned that IO/SI K.L.Yadav requested public persons to join recovery proceedings but no one agreed. Witnesses examined to establish the address of Satyawan PW-12 Ramesh Rathi (Retd. District Food Supply Officer) failed to produce the original record of ration card and mentioned that the record has been weeded out.
PW-13 Murti Devi (Public witness to establish the address of Satyawan) FIR No.34/1997 State Vs Mahender Singh & Anr. Page 6 of 18 did not support the prosecution' s case. She stated that although Satyawan belongs to her native village but she does not know the house number where he used to reside.
6. Statement of Satyawan was recorded under Section 313 Cr.P.C wherein he denied all the incriminating evidence. He stated that the consignment was not entrusted to him. He admitted that he was the owner of truck bearing registration No.DNG-0844 and Mahender @ Manjeet was the driver of his truck. It appears from his statement that he tried to shift the entire blame on Mahender @ Manjeet about the forging of documents. He admitted that he was residing at House No.56, Village Bamnauli but denied recovery of PVC bags from his house. No defence witness was examined.
Arguments
7. I have heard the rival arguments advanced at bar by Ld. APP for State and Ld. Defence Counsel.
8. Ld APP has argued that prosecution' s case has been established to the hilt. He contended that there is overwhelming evidence on record to establish that both the accused committed criminal breach of trust in respect of consignment which was entrusted to them. He mentioned that testimony of witnesses from the concerned transport authorities has established that both the accused acted in further of their common intention and prepared forged documents of the truck. He stated that Satyawan has made a hopeless attempt to save himself by pleading ignorance about the entire transaction. He mentioned that recovery stands duly proved as the testimony of all the recovery witnesses is coherent.
9. On the other hand, Ld defence counsel argued that there are material contradictions and discrepancies in the testimony of recovery witnesses. He contended FIR No.34/1997 State Vs Mahender Singh & Anr. Page 7 of 18 that the testimony of complainant is not reliable as it contains various contradictions. It has been argued by him that there is no evidence to establish that consignment was entrusted to Satyawan or that Mahender @ Manjeet was acting in connivance with this accused. He stated that purported recovery is doubtful as no independent witness was joined. Counsel has argued that testimony of police officials is not reliable. He contended that the material on record is not sufficient to prove charges against the Satyawan and he should be acquitted.
10. I have perused the record in the light of respective arguments.
Brief reasons for the decision
11. Charges under Section 407/471 IPC read with Section 34 IPC were framed against accused Satyawan. In order to establish charge under Section 407 IPC, the prosecution has to establish that accused was entrusted with property as carrier and while being so entrusted, he committed criminal breach of trust in respect of that property. For establishing the criminal breach of trust, it is sacrosanct to demonstrate that accused was entrusted with the property or any dominion over the property and he dishonestly misappropriated or converted to his own use that property in violation of any express or implied legal contract. On the other hand, for establishing a charge under Section 471 IPC, prosecution has to establish that accused fraudulently or dishonestly used a forged document as genuine knowing or having reasons to believe that the same is forged. Now, let us peruse the record to see whether these charges have been established.
12. In order to establish the entrustment part, prosecution relied upon the testimony of witnesses from the company. Three witnesses from the company were examined i.e. PW-1 Naresh Sharma, PW-4 Om Prakash Sharma and PW-16 Ravinder FIR No.34/1997 State Vs Mahender Singh & Anr. Page 8 of 18 Sharma. Perusal of their testimony shows that none of them mentioned that the consignment was entrusted to Satyawan. Naresh Sharma (PW-1) stated that a truck bearing No.HR-12-1224 was hired by his office for transporting consignment from the factor of Reliance Industries Ltd. at Hazira to the office of company at Paharganj, New Delhi. He mentioned about various documents which were prepared for sending the consignment including the consignment note and invoices. He stated that Mahender Singh @ Manjeet was the driver of the truck on which the consignment was loaded and as per the challan dated 26.12.1996 (Ex.PW-1/B), one Devender Singh was the owner of the said truck. He did not mention the name of Satyawan. Similarly, Om Prakash Sharma (PW-4) also remained silent on this aspect. The testimony of Ravinder Sharma (PW-16) was very crucial to establish the allegation that consignment was entrusted to both the accused. He was employee of the company who accompanied the driver to the factory of Reliance Industries Ltd. at Hazira. He stated that on the instructions of Manager of the company, he accompanied the driver Manjeet Singh @ Mahender to the factory of Reliance Industries Ltd. and the consignment was dispatched from the factory. He stated that at that time, another person was accompanying Manjeet @ Mahender but mentioned in his cross examination that he can not say whether Satyawan was the said person.
13. Thus, the deposition of the witnesses from the company does not, in any manner, establish that the consignment was entrusted to the Satyawan. It may be that Manjeet Singh @ Mahender was acting under the instructions of Satyawan as he was the owner of the truck but there is no concrete evidence to presume this fact which has not been proved. In order to bring home charge with the aid of Section 34 of IPC pertaining to joint liability, it is essential to establish the participation of accused in FIR No.34/1997 State Vs Mahender Singh & Anr. Page 9 of 18 the alleged offence. Evidence shows that although, the misappropriated consignment was subsequently recovered from the house of Satyawan but this circumstance, in itself, is not sufficient to arrive at a finding that Satyawan participated in commission of offence with his driver for committing criminal breach of trust in respect of consignment which was entrusted by the company. The circumstances proved by the evidence raise a very strong suspicion about the involvement of accused but the evidence falls shot of establishing his participation in commission of offence. Thus, charge under Section 407/34 IPC has not been proved.
14. The charge under Section 471 IPC qua Satyawan has also not been established. The evidence has established that forged documents of the truck were recovered from the possession of Mahender @ Manjeet who has been declared ' proclaimed offender' . Ct. Nagender Kumar (PW-2) mentioned that the forged documents recovered from the possession of Mahender were seized by the Investigating Officer. The deposition of Major Singh (PW-3), Licensing Clerk from the transport authority goes on to show that a Padmini Car was registered in the authority under the registration number of HR-12-1224 which was depicted in the forged documents as the registration number of the truck. Dr. Rajender Singh (PW-5), Principal Scientific Officer, examined the chassis number of the truck and gave a finding in his report (Ex.PW-5/A) that the numbers have been tampered. Sh. A.K.Gupta (PW-7), Director, FSL mentioned that handwriting of Manjeet @ Mahender was found on the forged documents of truck while Jagram (PW-10), Assistant from State Transport Department mentioned that permit of the truck was forged. Sampat Naik (PW-15), MLO (Hq.), Delhi deposed that the truck bearing registration No.DNG-0844 was purchased by Satyawan. In fact, the accused himself FIR No.34/1997 State Vs Mahender Singh & Anr. Page 10 of 18 admitted in his statement recorded under Section 313 Cr.P.C that he was owner of the truck. However, this evidence does not demonstrate that Satyawan either forged the documents of the truck or knowingly used the forged documents as genuine. The evidence, at best, depicts that the driver Manjeet Singh @ Mahender might have prepared those documents and used forged documents as genuine but nothing beyond that. Thus, charge under Section 471 IPC has not been established qua Satyawan. However, there is sufficient material on record to establish that Satyawan committed an offence punishable under Section 411 IPC.
15. Prosecution has been successful in establishing recovery of the misappropriated consignment from the house of Satyawan. The testimony of recovery witnesses establish that misappropriated bags of PVC were recovered from the house of Satyawan. Three recovery witnesses were examined i.e. Naresh Sharma (PW-1), ASI Karan Singh (PW-9) and Insp. K.L.Yadav (PW-11). These recovery witnesses have deposed in sync mentioning that misappropriated bags were recovered from the house of Satyawan. Complainant Naresh Sharma (PW-1) mentioned in his examination-in-chief that on 23.01.1997, he joined the police party and Mahender @ Manjeet took them to House No.56, Village Bamlauli, Distt. Rohtak (Haryana) from where 360 misappropriated bags containing PVC were recovered. He stated that the recovered bags were seized vide seizure memo (Ex.PW-1/D) and identified his signatures on the seizure memo. He mentioned that a sample bag was retained while the remaining bags were deposited in the Malkhana. He identified the sample bag which was produced from the Malkhana as Ex.P1. Pursuant to the directions issued by the Appellate Court of Sh Narender Kumar, Ld ASJ Central, Delhi, the witness was recalled for cross examination but this time, he tried to twist his earlier FIR No.34/1997 State Vs Mahender Singh & Anr. Page 11 of 18 statement and mentioned that he was informed by the police that the stolen goods have been recovered and he was only called to identify those goods. He showed ignorance about the place of recovery mentioning that it was the police officials who informed him that misappropriated PVC bags have been recovered from the house of Satyawan. The witness seems to have suggested that he does not recollect the details of the alleged recovery because of the time gap. He was declared hostile and was cross examined by the Ld. APP. He admitted during his cross examination that he accompanied the police to the house of accused at village Bamloni, District Rohtak but stated that he does not recollect whether accused Mahender also accompanied the police party. He also admitted the recovery stating that 360 PVC bags were recovered from the house. He stated that he identified the recovered goods after comparing them with the consignment note (Ex.PW1/A). He mentioned that he also identified the case property on the basis of marka (mark) on the consignment bill. On perusing the entire testimony of this witness, I have reached a conclusion that in totality, he has supported the prosecution' s case. Although, he was declared hostile by the prosecution but his testimony cannot be discarded on this ground. There is no impediment in relying upon the testimony of a hostile witness. Even the evidence of a hostile witness can be accepted and relied on provided there is material to corroborate his testimony. It is a settled proposition of law that merely because a witness has been declared hostile, it does not make him unreliable. Reference in this regard can be made to the judgment in Ravindra Kumar Dev Vs. State of Orissa 1997 AIR SC 170. The fact that the prosecution has got declared its own witness as hostile does not completely efface his evidence. The evidence remains admissible. FIR No.34/1997 State Vs Mahender Singh & Anr. Page 12 of 18
16. Record shows that the testimony of Naresh Sharma (PW-1) finds support and corroboration from the deposition of other recovery witnesses. ASI Karan Singh (PW-9) has also mentioned that recovery was made from the house bearing No.56, Vill. Bamlauni, Rohtak (Haryana). Similarly, Insp. K.L.Yadav (PW-11) has also given similar account of recovery mentioning that 360 bags of PVC were recovered from the house of Satyawan. The police witnesses have categorically deposed about the presence of complainant mentioning that he was accompanying the police party. Insp. K.L.Yadav mentioned that complainant identified the case property at the house of accused and the recovered bags were seized. The testimony of these recovery witnesses leaves no scope for doubt that the bags which were loaded on the truck and misappropriated by Mahender @ Manjeet were recovered from the house of Satyawan.
17. Ld. Defence Counsel has assailed the testimony of recovery witnesses mentioning that their testimony is not reliable. He argued that there are contradictions in the testimony of recovery witnesses. He pointed out that ASI Karan Singh stated in his cross examination that no person was found present at the house when the police party reached there while Insp. K.L.Yadav mentioned that ' pardanashi' women were present at the house when the police party reached at the house. He stated that Naresh Sharma has also stated in his cross examination that no one was present at the house when the police party reached there. Ld Counsel has placed reliance upon the judgment in Dharam Singh Mangal Singh Vs. State AIR 1961 Punjab 30 (V 48 C
12) and argued that accused cannot be convicted for the recovery made from his house during his absence. I have gone through the entire record as well as the judgment on which reliance has been placed. I am not impressed with the arguments FIR No.34/1997 State Vs Mahender Singh & Anr. Page 13 of 18 advanced by the Defence Counsel. In Dharam Singh' s case (supra), the Court acquitted the accused on the ground that he cannot be held accountable for the stolen articles recovered from a box kept at his house when the keys of that box were produced by his wife. It was held in this case that in these circumstances, it cannot be taken that wife was holding the goods on account of her husband and therefore, the accused was acquitted. The present case is on an altogether different footing. It is not that the stolen articles were hidden at some place in the house of accused. The stolen property consisted of 360 bags of PVC. It is not possible to hide these articles in the house of accused and it cannot be taken that he had no knowledge about the stolen articles kept at his house. Such large number of bags would be apparently visible to the occupants of the house. Therefore, the defence taken by the accused does not hold ground.
18. The argument that there are contradictions in the testimony of recovery witnesses is also not convincing. I have perused the cross examination of recovery witnesses but I do not find any material contradictions in their testimony. Although, there are some minor contradictions in the testimony of police witnesses but these contradictions are not fatal. Some minor contradictions are bound to appear in the testimony of witnesses. It would be unfair to discard their testimony merely because of these minor contradictions. Both the police officials have given a similar account of recovery and deposed on same lines in respect of recovery of misappropriated bags. Complainant has also supported recovery and corroborated the testimony of police witnesses.
19. It has also been a line of argument of defence that no public witness was joined in recovery and on account of this reason, the recovery is doubtful. It is the FIR No.34/1997 State Vs Mahender Singh & Anr. Page 14 of 18 stereo type argument. I am of the considered opinion that the testimony of police personnel cannot be brushed aside merely because no public persons have been joined in investigation. The provisions as provided under Section 100 (4) Cr. PC are only directory and failure to comply with the said provisions will not invariably be fatal for the case of the prosecution. It has been held by the Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh reported in AIR 1994 SC 1872 that " The scope of these two sections (section 100 and 165 of Code of Criminal Procedure) have been examined in a number of cases. In Wasan Singh v. State (1981) 2 SCC this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Suder Singh v. State of Uttar Pradesh, AIR 1956 SC 411, it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra v. P.K. Pathak, AIR SC 1224, it is held that absence of any independent person from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In Radha Kishan v. State of Uttar Pradesh, 1963 SC 822, it is held that irregularity in a search would, however, cast a duty upon the Court to scrutinize the evidence regarding the search very carefully. In Matajog Dubey v. H.C. Bahri, AIR 1956 SC 44 it is held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions.......
.....This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
20. On applying the abovesaid provisions to the present matter, it is evident that the recovery of misappropriated bags has been proved. There is no reason to doubt the testimony of recovery witnesses merely because they are police personnel. FIR No.34/1997 State Vs Mahender Singh & Anr. Page 15 of 18 It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Administration) reported in AIR 2003 SC 1311 :
" ........The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depends upon the facts and circumstances of each case and no principle of general application can be laid down....."
21. There is no reason to doubt the testimony of examined witnesses. There is nothing on record to show as to why the witnesses would falsely depose about the recovery or falsely implicate the accused in the present case. Although, the prudence demands that independent witness should be joined in recovery proceedings but it does not mean that in every case, the testimony of recovery witnesses should be doubted merely because no independent public witness has been joined. What is required or called for is that the police officials should make genuine and sincere efforts to join public witness at the time of recovery. Both the police witnesses have mentioned that efforts were made to join public witness from the locality but nobody was willing to join recovery proceedings. In such circumstances, the argument of defence that the testimony of police officials should be discarded merely because there is no independent public witness of recovery does not hold ground. Reference in this regard can be made to the decision in Ajmer Singh Vs. State of Haryana 2010 (2) RCR (Crl.) 132 and Ram Swaroop Vs. State (Govt of NCT Delhi) 2013 FIR No.34/1997 State Vs Mahender Singh & Anr. Page 16 of 18 VI AD (SC 228).
22. Record further shows that Satyawan admitted in his statement recorded under Section 313 Cr.P.C that he is residing at H.No.56, Village Bamlauni, Rohtak (Haryana). Recovery witnesses have specifically mentioned the address from where the recovery was effected. The same address as mentioned by these recovery witnesses has been recorded in the seizure memo which was prepared on the spot. The PVC bags recovered from the house of accused were identified by the complainant. Once the prosecution has established that misappropriated bags were recovered from the house of Satyawan, then, the onus of explaining its possession shifted upon him. It was for Satyawan to explain as to how he gained the possession of misappropriated bags which were recovered from his house. Instead of tendering an explanation, he adopted a mode of complete denial which does not come to his rescue. The circumstances proved on record leaves no scope for doubt that Satyawan had every reason to believe that 360 PVC bags, which were recovered from his possession, were stolen property. The identity of case property has already been established.
23. In view of the discussion made in the aforesaid paras, I have no hesitation in concluding that Satyawan committed an offence punishable under Section 411 IPC by dishonestly receiving and retaining the possession of misappropriated PVC bags of the company knowing or having reasons to believe that the same constitutes a stolen property. The argument of the defence that accused cannot be convicted under Section 411 IPC merely because charge has not been framed under the said Section is misconceived. In Maimai Shah Vs. State AIR 1958 Allahabad 422, it has been held that for a conviction of a particular offence, it is not always necessary that there should have been a charge in respect of that offence. The FIR No.34/1997 State Vs Mahender Singh & Anr. Page 17 of 18 court observed that if there is evidence on record that a certain offence has been committed but in respect of which there is no specific charge, the accused can be convicted of that offence unless his conviction on that charge would occasion a failure of justice. In the present case, although charge under Section 411 IPC was not framed but there is definite evidence on record to show that stolen property was recovered from the possession of accused. During examination under Section 313 Cr.P.C, the accused was specifically questioned on this part of the evidence and he denied. In these circumstances, it cannot be said that accused was not aware of the evidence regarding the recovery of stolen property from his possession. He could have certainly met that evidence and in his defence produced evidence that no such recovery was made from his possession or that the property which was alleged to have been recovered from his possession was not stolen property but he failed to do so. The result is obvious. Accused Satyawan stands acquitted of charges under Section 407/471 IPC read with Section 34 IPC but he is convicted for committing offence punishable under Section 411 IPC.
Be heard separately on the point of sentence.
Announced in open Court (SUDHANSHU KAUSHIK)
on 27.05.2015 ACMM-01, Central District,
Tis Hazari Courts, Delhi
It is certified that this judgment contains Eighteen (18) pages and each page bears my signatures.
(SUDHANSHU KAUSHIK) ACMM-01, Central District, Tis Hazari Courts, Delhi FIR No.34/1997 State Vs Mahender Singh & Anr. Page 18 of 18