Brahmanand Choudhary vs State of Jharkhand

Heard Ms. Nazia Rashid, learned counsel, appearing for the petitioners and Mr. Rajesh Kumar Mishra, learned APP for the State.   Â

Since both these applications arise out of common judgment, the same are being disposed of by this common order.Â

These applications are directed against the judgment dated 25.08.2008 passed in Cr. Appeal No. 88 of 1999 and Cr. Appeal No. 85 of 1999 by

learned Additional Sessions Judge-I, Palamau at Daltonganj, whereby and whereunder, the judgment of conviction and the order of sentence dated

15.07.1999 passed by learned Railway Judicial Magistrate, Daltonganj in R.P. Case No. 128 of 1996 (T.R. No. 327 of 1999), convicting the

petitioners for the offences punishable u/s 3 of the R.P. (U.P.) Act and sentencing them to undergo R.I. for one year, has been affirmed.Â

The prosecution story in brief, is that, the informant received information that some persons were carrying railway property from Kechki railway

station towards river. On the basis of the aforesaid information the informant conducted raid in between Kechki railway station and the river and some

persons who were carrying CST plates were apprehended and a seizure list was also duly prepared. It has also been alleged that on the basis of the

confessional statement of co-accused, house of Gobardhan Mistry, Bachchu Mistri, Sikandar Choudhary and Shanti Devi were searched and a huge

quantity of railway materials were recovered. On the basis of written complaint RPF/GHD/Case No. 45 of 1996 was instituted and after due enquiry

prosecution report was submitted pursuant to which the cognizance was taken. Charge was framed u/s 3 of the R.P. (U.P.) Act to which the

petitioners pleaded not guilty and claimed to be tried.Â

In course of trial 05 witnesses were examined on behalf of the prosecution. P.W. 1, Bhagwat Pd. Singh, who is the Officer-in-Charge of Garhwa

RPF post, had deposed that on 10.10.1996 he had conducted a raid in between Kechki railway station and Koel river and had found 07 persons taking

away CST plates of railways. On apprehending those persons CST 9 plates were recovered from their possession. On the indication of the accused

persons search was made in the house of the persons whose names were disclosed and several railway articles were seized and the seizure lists were

also duly prepared. This witness during enquiry had recorded the statement of the witnesses, inspected the place of occurrence and got the seized

articles examined by expert and thereafter submitted an enquiry report which has been marked as Ext. 5. The sketch map with respect to the place of

occurrence was also proved and marked as Ext. 6 to 6/b. P.W. 2 Suresh Khalko is a Junior Engineer who has examined the seized articles and has

submitted his report which has been marked as Ext. 7. This witness have found the seized articles to be railway property. PW. 3 Neel Kamal

Chattopadhyay is also an expert and he had examined the seized articles and had also submitted a report. This witness had stated that that the articles

seized were railway property. P.W. 4 and 5 were members of the raiding party who have supported the recovery of railway articles from the persons,

who were apprehended as also recovery of the railway articles from the house of the persons whose names were disclosed by the persons

apprehended.Â

It has been stated by learned counsel for the petitioners that the material exhibits were not produced in the Court and no independent witness had

been examined. It has further been stated that there is no evidence that the stolen railways property were recovered from the conscious possession of

the petitioners.   Â

Learned APP for the State has opposed the prayer made by the petitioners.Â

It appears from the evidence adduced on behalf of the prosecution that all the witnesses have consistently stated that the railway materials were

seized from the possession of the petitioners as also from the house. The defence has failed to utter any positive response with respect to the assertion

of the prosecution that seized articles were stolen railway materials. The report of the expert being P.W. 2 and 3 also substantiate the prosecution

case that the articles seized were railway materials. So far as the non-production of material exhibits in the Court is concerned, the same is not of

much significance in view of the oral as well as the documentary evidence adduced on behalf of the prosecution. The defence did not examine any

witness and in fact no documentary evidence was produced by the defence to show the genuinity of the articles which were seized from their

possession. The evidence of the witnesses thus conclusively proves that the articles which were seized were stolen railway articles substantiated by

the evidence of P.W. 2 and 3.Â

In such circumstances, therefore, the learned trial court had rightly convicted the petitioners for the offence u/s 3 of the R.P. (U.P.) Act, which

was also affirmed in appeal. The same is hereby sustained. Â

However with respect to the sentence imposed upon the petitioners, it appears that the petitioners have been facing rigours of the criminal case

since 1996 and they have remained in custody for some period. On consideration of the aforesaid facts, the order of sentence passed against the

petitioners is modified to the period already undergone by the petitioners.  Â

This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioners. Â

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