Maha Singh vs State of Haryana

M.L. Singhal, J.

The prosecution case, in brief, is that on 10.9.1988 HC Brahamjit of Railway Protection Force was on duty at Railway godown from 16.00 to 24.00 hours and at about 18.45 hours, Maha Singh was seen coming on cycle from Delhi side carrying some weight on the carrier of his cycle. On suspicion, he was stopped by HC Brahamjit. He was apprehended. HC Brahamjit took him to ASI Randhir Singh of RPF, who was present in his office. ASI Randhir Singh in the presence of witnesses conducted the search of the accused. 10 railway track keys were recovered from the polythene which the accused was carrying on his cycle. He could not produce any proof to show that he was authorised to retain the said track keys. The track keys in question were taken into possession. Accused was arrested. Case FIR No. 9 of 10.9.1988 under section 3 of the Railway Property (Unlawful Possession) Act, 1966 was registered against the accused at Police Station RPF Sonepat. After investigation, Maha Singh accused was challaned.

Charge under Section 3 of the Railay Property (Unlawful Possession) Act, 1966 was framed against the accused. He pleaded not guilty to the charge and claimed trial.

On the conclusion of the trial, Additional Chief Judicial Magistrate Sonepat found the charge proved against the accused and convicted him thereunder and sentenced him to undergo RI for one year and to pay a fine of Rs. 1000/. In default of payment of fine, he sentenced him to further undergo RI for three months vide order dated 28.9.1996.

Maha Singh went in appeal to the Court of Session assailing his conviction and sentence recorded by the learned Magistrate.

Learned Additional Sessions Judge, Sonepat dismissed his appeal vide his judgment dated 18.11.1998.

Maha Singh has knocked the door of this Court through this revision whereby assailing the dismissal of his appeal by the learned Additional Sessions Judge, Sonepat and has prayed for his acquittal.

Learned counsel for the petitioner has submitted that Courts below should not have found the charge under section 3 of the Railway Property (Unlawful Possession) Act, 1966 proved against the accused on the strength of the solitary statement of HC Brahamjit Singh. It was submitted that railway godown is a busy place and he ought to have the support of some independent witness who could state about this recovery of the railway property from the possession of the accused. Suffice it to say HC Brahamjit Singh took the accused with his cycle carrying the polythene to ASI Randhir Singh of the Railway Protection Force. ASI Randhir Singh questioned the accused as to how he came by track keys belonging to the railways and the accused could give no explanation. ASI Randhir Singh recorded the confessional statement of the accused. Confession made by the accused before ASI Randhir Singh of RPF is admissible into evidence and is not hit by Section 25 of the Evidence Act as was held in Bal Kishan A. Devi Dayal v. State of Maharashtra, 1980 Crl. L.J. 1424. HC Brahamjit Singh and ASI Randhir Singh of RPF can be taken as independent witnesses and they have supported the prosecution case. Amar Singh PW3, who has examined track keys Ex.P1 to P10, has given his report Ex.PW2/B and has stated that these track keys are the property of the railways. When it had been proved by Amar Singh PW3 that these track keys are the property of the railways, it lay upon the accused to prove that these are not the railway property.

Faced with this position, learned counsel for the petitioner submitted that the petitioner should be released on probation of good conduct. He submitted that the benefit of provisions of Probation of Offenders Act, 1958 can be extended to the accused and there is no requirement in Section 3 of the Railway Property (Unlawful Possession) Act, 1966 that the minimum sentence has to be imposed.

Section 3 of the Railway Property (Unlawful possession) Act, 1966 reads as follows :

"Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable

(a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees;

(b) for the second or subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees."

Learned counsel also drew my attention to Nirmal Lal Gupta v. State of Orissa, 1995 SCC Criminal 782 where it was held that Clause (a) gives a choice to the court to either award imprisonment or impose fine or both. It is the choice of the court which determines whether imprisonment alone should be awarded or fine alone be imposed or both should be awarded. It is thus obvious that it is not obligatory on the court to always award imprisonment as a punishment. Once it is so understood it is difficult to comprehend that a minimum sentence alone thereunder is imposable to which the Probation of Offenders Act would not be applicable. Accused is a young man of 24 years of age. He is not a previous convict. He is stated to be the sole bread winner of the family consisting of his old parents. He was put up on trial on 23.12.1988. He has, thus, been suffering the vagaries of this trial for the last about 10 years. So, I feel that there is adequate and special reason to award sentence less than the minimum prescribed in Section 3(a) of the Act. So, the sentence imposed upon the petitioner is slashed and is brought down to RI for three months. Fine of Rs. 1000/ shall remain intact together with the default clause.

Subject to the reduction in the sentence as suggested above, this petition fails and is dismissed.