Manjunath vs Union of India

Anand Byrareddy, J.—Heard the learned Counsel for the petitioners. The petitioners are accused in the following circumstances:

It is the case of the prosecution that on 7.4.2005 at about 3.30 p.m., when the Railway Police were on confidential watch at the railway under bridge near Konkan Railway K.M. 705/2000, the petitioners herein, arraigned as accused nos. 1 and 2, were found to be in unlawful possession of Railway property, namely, 79 pandroll clips, contained in gunny bags and without supported by any documentary evidence or authority for the possession of the said property, which was apparently the Railway property. It was concluded that they had stolen the same and were proceeding to carry the said goods away for an illegal benefit and hence, it was held that they had committed the offence punishable u/s 3(a) of the Railway Properties (Unlawful Possession) Act, 1966 (Hereinafter referred to as the "Act", for brevity). The Railway Police had, therefore, promptly seized the properties under a mahazar and the accused were arrested and their statements were recorded and a case was registered against the accused.

The statements of other witnesses were recorded and a rough sketch of the place of the incident was prepared and after completion of the investigation, on 12.7.2005, that a charge-sheet was laid against the accused. The accused were on bail. Pursuant to the charge sheet, the papers were furnished to the accused and charge was framed and read over. The accused having pleaded not guilty and having claimed to be tried, the prosecution had tendered its evidence and seven witnesses had been examined as PWs. 1 to 7 and Exhibits P.1 to P.8 were marked apart from material objects Nos. 1 to 79 and the prosecution had closed its case.

The accused were examined u/s 313 of the Code of Criminal Procedure, 1973 and the accused having pleaded not guilty and having claimed total denial of the case of the prosecution, the Trial Court had framed the following points for its consideration:-

"1. Whether the prosecution proves beyond all reasonable doubt that the accused on 7.4.2005 at about 3.30 p.m. near Konkan railway K.M. No. 705/2000 found in unlawful possession of railway property i.e. 79 pandroll clips belonging to the Konkan railway, without any documents or authority for the possession of the same and thereby accused have committed offence punishable u/s 3(1) of Railway Properties (unlawful possession) Act, 1966?"

The Trial Court answered the same in the affirmative and found the accused guilty of the offence punishable u/s 3(a) of the Act and taking into consideration that the accused, however, were young men and not found to be habitual offenders, but however, the offence committed was serious one, as it was possible that by virtue of the pandroll clips having been removed, there was chance of derailment of the trains moving on the track and posing at risk thousands of persons, who are commuters, the court below, notwithstanding the gravity of the offence, has restricted the punishment to 2 years, though a maximum punishment of 5 years could have been imposed. Thereafter, the accused had preferred an appeal before the appellate court urging the defence that were set up before the trial court The appellate court, however, by a reasoned order, had affirmed the judgment of the trial court. It is this which is sought to be questioned in this revision petition.

The learned Counsel for the petitioners would contend that the revisional jurisdiction of this court in respect of the judgment of the trial court as well as the appellate court, which are concurrent findings, is certainly limited in scope. Further, PW. 1, in his examination-in-chief, having stated that he had seen the accused transporting the stolen articles at 3.30 p.m. on 7.4.2005, where as the evidence of PW. 2 indicating that the incident as regards the accused having been apprehended, was at 3.30 p.m., is a glaring contradiction, which would render the very case of the prosecution doubtful, as there is no explanation forthcoming in respect of this inconsistency. Further, the learned Counsel would point out that there was no motive alleged nor can it be said that the articles were of such value that the petitioners would risk their very lives in seeking to remove the same, which is not easily done.

It is further pointed out that it is admitted by a witness for the prosecution that the pandroll clips cannot be removed from the tracks, without proper tools and there were no such tools, which were recovered from the accused. Hence, the allegations against the accused of having recovered the article from their possession becomes even more doubtful. It is further pointed out that PW. 1 had not produced any document to establish that he was on duty and the seizure has taken place at the time when he was on duty. The trial court as well as the appellate court has overlooked this significant requirement of the prosecution establishing the presence of the PW. 1 at the time and place, where the alleged seizure had taken place in the absence of cogent evidence in that regard. It is also stated that there was no eye witness to corroborate the allegation that the petitioners were transporting the articles seized. Given the circumstance that the area, where the alleged seizure had taken place, was well populated, the absence of any third-party witness to the incident, is unusual and casts further doubt on the veracity of the case of the prosecution. Further, it is stated that according PW. 1, the pandroll clips would require to be changed once in every three years and it is not indicated as to when such change was effected insofar as the railway track is concerned. It is also pointed out that there is no seal or identification mark on the Material Objects to indicate that the same belonged to the Railways. It is these and further discrepancies which the learned Counsel would seek to urge, a have been completely overlooked by both the courts below, in imposing the punishment, which is of a serious nature, in the absence of cogent evidence and in the face of the infirmities, which are highlighted hereinabove and seeks that the petition be allowed.

While the learned Central Government Standing Counsel appearing for the respondent, would vehemently oppose the petition and would point out that having regard to the concurrent findings of fact, this court, in its revisional jurisdiction, could interfere, if there is any glaring infirmity or illegality The so-called infirmities, which are sought to be highlighted by the petitioners, are very contentions taken before the court below and he would draw attention to the reasoning of the courts below in that regard and would point out that the courts below have, in fact, dealt with these very contentions and the overwhelming evidence as to the guilt of the petitioners. There was no explanation forthcoming with regard to the possession of the articles. And the fact that these are pandroll clips, which cannot be utilised for any other purposes, other than for the Railway department, is established beyond all reasonable doubt. The learned counsel would submit that the maximum punishment that was attracted, was 5 years, and though the case has been established beyond all reasonable doubt, the courts below have taken a lenient view, on account of the age of the accused and the fact that they were not habitual offenders and have restricted the punishment to 2 years simple imprisonment, which is a lenient punishment by any standards and would submit that there is no warrant for interference by this court in its revisional jurisdiction.

While the learned Counsel for the petitioners, by way of reply, would still insist that admittedly, the value of the articles involved is only Rs. 2000/- and the contention that the petitioners would have risked their very reputation and lives to commit theft of the pandroll clips is far-fetched, as sought to be accepted by the courts below, is unfair and would submit that it has certainly resulted in a miscarriage of justice.

On a close examination of the record and the findings of the courts below, the so-called infirmities, which are sought to be highlighted by the learned Counsel for the petitioners have, indeed, been addressed by the courts below and are infirmities which would not go to the root of the matter and hence, it cannot be said that the infirmities, if any, are fatal to the case of the prosecution. On the other hand, the evidence on record cannot be disbelieved or discarded as it is not the case of the petitioners that they have been framed in any false case on account of any mala fides on the part of the complainant and other witnesses. They are independent witnesses, who have spoken of the circumstances and hence, the courts below having arrived at concurrent findings, does not warrant interference.

However, one aspect of the matter is whether the punishment imposed in so far as the to property, which was worth about Rs. 2,000/-, admittedly, was disproportionate to the offence committed. Though it is urged that the removal of the pandroll clips from the Railway track, would place at risk and would have resulted in derailment of the trains using the track. There is no evidence on record to indicate that these were not pandroll clips, which had already been removed or replaced by other pandroll clips and that aspect of the matter has not been highlighted. Therefore, apparently, it can also be said theoretically that these pandroll clips were loose pandroll clips, which was available and which had been replaced by others. Hence, the gravity of the offence sought to be highlighted, on the footing that by virtue of removal of these articles, the great risk fell on several passengers of the trains using the track, is not a consideration, on which the punishment could be imposed. It is therefore possible for this court to take a view that the punishment imposed is disproportionate to the offence alleged, when the value of the article is taken at Rs. 2,000/-. In view of the fact that the petitioners have already undergone imprisonment of 1 year 5 months, in discharge of the punishment imposed on them, it would be just and proper if the sentence of 2 years imposed on the petitioners is reduced to 18 months and the judgments of the courts below are accordingly modified. Therefore, the given the circumstances of the case, the sentences of imprisonment stands reduced to 18 months in stead of 2 years.

With that modification, the petition is allowed in part while confirming the judgments of the courts below. The sentence stands modified. The order of the court below, in all other respects, remain unaltered.