In Re: B. Mohan

David Annoussamy, J.—This is a revision petition by the accused against the conviction and sentence.

The case of the prosecution is shortly as follows; P.W. 4 is working as a Kalasi in the railways in Tiruchi. Whenever there is trouble in the

telephone system belonging to the railway, he would be asked to go and repair the connection which had gone wrong. On 23-2-1980, at about 7

p.m., he received information that the connection was cut. He went and found that the wire between posts Nos. 338/16 and 339/3 was cut and

taken away. He filed a report about the same.

P.W. 1 attached to the Railway Protection Force, arrested on 25-2-1980, at 4 p.m. one Kandaswami in connection with some other offence,

and when he examined him in respect of the wire, the accused gave a confessional statement Ex. P. 1. On the basis of that statement, P.W. 1 and

his party went to the scrap iron shop of the accused. When P.W. 1 enquired of the accused, the latter gave one bundle of wire which was seized

under the mahazar Ex. P2. Both the accused and the wire were taken to the police station, where a statement from the accused, Ex. P. 3 was

recorded. At the end of the investigation, a final report was filed under S. 173 Cr.P.C. to the effect that an offence under S. 3 of the Railway

Property (Unlawful Possession) Act 1966 has been committed by the accused.

The trial court charged the accused for an offence under the aforesaid section, found him guilty thereunder and sentenced him to suffer

imprisonment till the rising of the court and to pay a fine of Rs. 500/-. The conviction and sentence have been confirmed by the Session Court.

Tirchirapalli, by judgment dated 19-3-1983. As against that judgment, the present revision petition has been filed.

The only ground urged before me by the learned counsel for the petitioner is that it has not been property proved that the property seized from

the accused was the railway property. Under the Railway Property (Unlawful Possession) Act. 1966, special provisions have been introduced in

order to protect the railway property. The Railway Protection Force has been given powers to arrest as well as to summon persons, and effect

searches. Above all, once a person has been found in possession of railway property, reasonably suspected of having been stolen or unlawfully

obtained, the burden shifts on him to show that he came into possession lawfully. Therefore, the whole investigation and the whole trial are based

on the special provisions of the Act. But, for these exorbitant provisions to come into play, the prosecution has necessarily to prove beyond

reasonable doubt that the property in possession of the accused is railway property. The Courts below came to the conclusion that it is railway

property, because there was a report on 23-2-1980 that copper wire belonging to the railways was stolen and on 25-2-1980, the property was

seized from the accused. The learned counsel appearing for the Public Prosecutor adds that there is also another element viz, that from the

retracted statement of the accused, Ex. P. 3 it can be gathered that the property was purchased by the accused on 23-2-1980. No doubt, the

similarly in dates would suggest that the property found in possession of the accused is the same as the one stolen from the railways. But, for the

conviction under S. 3 of the Act, something more is needed. It should be proved beyond reasonable doubt that the property recovered from the

accused is the railway property, much more so on account of the shifting of the burden of proof on the accused embodied in S. 3 of the Act. In this

case, as observed by the appellate court itself, the prosecution could have indicated the length of the railway wire which was found cut an

examined whether the bundle of wire in possession of the accused was of the same length.

It would be dangerous to base a conviction under S. 3 of the Act merely on the fact that the date of disappearance and the date of purchase

happened to be the same without being satisfied with the dates between the articles missing and the articles purchased by the accused. There is still

a certain amount of doubt lingering, the benefit of which should go to the accused.

In the result, the revision is allowed, the conviction and sentence are set aside and the petitioner is acquitted. The fine amount if already realised,

will be refunded to the petitioner.

Revision allowed.