Md. Amjad vs State Of Jharkhand And Others

Anubha Rawat Choudhary, J

Heard Mr. Saurav Kumar, the learned Amicus Curiae appearing on behalf of the petitioner.

Heard Mr. Navin Kumar Singh, the learned A.P.P. appearing on behalf of the State.

Heard Mr. Suraj Kishore, the learned counsel appearing on behalf of the Opposite Party No.2.

This criminal revision application is directed against the Judgment dated 03.08.2002 passed by learned 3rd Additional District & Sessions Judge, Deoghar in Criminal Appeal No. 73 of 2000 whereby and whereunder the learned appellate court has set-aside the Judgment of conviction and the order of sentence dated 30.09.2000 passed by the learned Judicial Magistrate, 1st Class, Railway Court, Madhupur in G.O.C.R. Case No. 17 of 1997 / T.R. Case No. 258 of 2000 and allowed the appeal preferred by the Opposite Party No.2 herein and acquitted the Opposite Party No.2 from the charge under Section 3(a) of the RP(UP) Act, 1966.

The learned trial court had convicted the Opposite Party No.2 under Section 3(a) of the Railway Property (unlawful possession) Act, 1966 [ hereinafter referred to as RP(UP) Act, 1966] and had sentenced him to undergo Rigorous Imprisonment for 03 years.

Arguments on behalf of the petitioner

Learned Amicus Curiae appearing on behalf of the petitioner referred to the impugned judgment passed by the learned appellate court and submitted that the petitioner was the informant of the case and the Opposite Party No.2 was convicted by the learned trial court, but the learned appellate court has acquitted the Opposite Party No.2 and accordingly, the present criminal revision application has been filed against the Judgment of acquittal passed by the learned appellate court.

While advancing his arguments, the learned Amicus Curiae submitted that one of the defences taken by the Opposite Party No.2 was that the goods were purchased from Maa Durga Trading Company and Krishna Enterprises, who were the auction purchasers, and the Opposite Party No.2 had purchased the goods from them and accordingly, he was a bonafide owner of the goods. In support of the contention, the Opposite Party No.2 in defence had produced Exhibits- A & B and the seized articles did not exactly match with the goods which were mentioned in Exhibits- A & B. The Opposite Party No.2 had further taken the defence that no witness from Maa Durga Trading Company or Krishna Enterprises was produced before the learned trial court to substantiate the deals.

The learned Amicus Curiae further submitted that the learned appellate court has failed to consider the facts that the present case was preceded by theft reports as contained in Exhibits- 5 to 5/6 and the goods seized were not scrap materials and accordingly, the Railway cannot be said to have sold the goods in auction. He submitted that the judgment of conviction passed by the learned trial court was a well-reasoned judgment, but the learned appellate court has not considered the aforesaid aspects of the case in proper perspective and therefore, the impugned judgment of acquittal is perverse and calls for interference.

Arguments on behalf of the Opposite Parties

Learned counsel appearing on behalf of the Opposite Party No.2, on the other hand, opposed the prayer of the petitioner and submitted that there is very little scope for interference in the judgment of acquittal. He submitted that the learned amicus appearing for the petitioner has not been able to refer to any material which has not been considered by the learned appellate court while passing the judgment of acquittal. He submitted that the entire evidence has been considered by the learned appellate court and even the seizure of the goods, which were produced before the learned trial court, was doubtful in view of the fact that the seized articles did not have any marking on them.

He further submitted that although the theft reports, were exhibited before the learned trial court as Exhibits- 5 to 5/6, but no TIP of the seized articles was conducted. He submitted that the theft reports were exhibited by P.W.-5 and specific questions in this regard were put to P.W.-5, no matching of the articles mentioned in the theft reports was done with the articles alleged to have been seized in the case.

He further submitted that the prosecution has failed to prove the case against the Opposite Party No.2 beyond shadow of all reasonable doubts and accordingly, the learned appellate court has rightly acquitted the Opposite Party No.2.

Learned counsel submitted that there is neither any illegality, nor any irregularity, nor any perversity in the impugned judgment of acquittal passed by the learned appellate court and accordingly no interference is called for in revisional jurisdiction.

Learned counsel appearing on behalf of the State submitted that the learned trial court had duly appreciated the materials on record and there was no occasion for the learned appellate court to acquit the Opposite Party No.2.

Findings of this Court

The prosecution case as per the written report of the petitioner-informant is that on receipt of secret information, the petitioner alongwith the R.P.F. force and the police of Kundhait P.S. raided the Godown-cum-shop of Subhash Kr. Dokania (Opposite Party No.2) situated at Kundhait on 28.08.1997 at about 11.25 hours and in course of search, a number of articles, detailed in the seizure list (Exhibit-1/1) were recovered from the possession of the Opposite Party No.2 in his presence. Thereafter, the articles were seized and the Opposite Party No.2 was taken into custody. Accordingly, a Complaint (Exhibit 2) was filed before the Inspector In-charge of R.P.F. (Line) Post, Andal. After completion of inquiry, prosecution report (Exhibit-8) was submitted before the Judicial Magistrate (Railway) at Madhupur and cognizance of the offence was taken under Section 3(a) of R.P. (U.P.) Act. Thereafter, Charge was framed against the Opposite Party No.2 under the same section which was explained to him to which he pleaded not guilty and claimed to be tried.

In course of trial, the prosecution examined altogether six witnesses to prove its case. P.W.-1 is Bharat Singh who was a member of the raiding party. P.W.-2 is S.I. Md. Amjad, R.P.F. who is the informant of the case and he had led the raid in the Godown of the Opposite Party No.2. P.W.-3 is Constable Ravindra Pd. Singh, R.P.F. who was a member of the raiding party and an eye witness to the occurrence and recovery. P.W.-4 is Ramesh Kumar Rai who was a Junior Engineer (Inspector) of Railways and who examined the seized articles as an expert. P.W.-5 is Arup Kumar Haldar who as an employee of P.W.I. (Planning) Asansol and had given the theft report. P.W.-6 is Kumar Surendra Sharma who is the Investigating Officer of the case and after inquiry, he had submitted prosecution report against the accused-Opposite Party No.2.

The prosecution exhibited altogether eight types of documents. Exhibit-1-series, except Exhibit-1/1, are the signatures in the seizure list and Exhibit-1/1 is the seizure list. Exhibit-2 is the written Complaint, Exhibit-3 is the statement of the accused recorded by the informant, Exhibit-4 is the report of P.W.I. (expert in respect of Railway articles), Exhibits-5 to 5/6 are the theft reports of Railway articles, Exhibit-6 is sketch map of village Kundait and the adjoining areas, Exhibit- 7 is a certificate issued by Mukhiya of Kundait Panchayat and Exhibit-8 is inquiry report (prosecution report). Material Exhibits- I, I/A and I/B are the seized articles.

After closure of prosecution evidence, the statement of the accused-Opposite Party No.2 was recorded under Section 313 of Cr.P.C. wherein he stated that the articles were recovered from his godown, but he has valid license for selling the articles which he had purchased in auction and he also submitted the documents. The Opposite Party No.2 examined three witnesses in his defence. D.W.-1 is Arjun Srivastav, D.W.-2 is Tarun Dey and D.W.-3 is Ramji Verma. The defence also exhibited some documents which were marked as Exhibit-A, Exhibit-B, Exhibit-C and Exhibit-C/1.

The learned trial court considered the evidences available on record and recorded its findings that the property recovered from the possession of the Opposite Party No.2 was railway property and he had no valid licence for keeping the same and the prosecution has been able to prove its case against the Opposite Party No.2 beyond reasonable doubts. The learned trial court convicted the Opposite Party No.2 under Section 3(a) of the RP(UP) Act, 1966 and sentenced him to undergo Rigorous Imprisonment for three years. At the time of conviction by the learned trial court, the Opposite Party No.2 was aged about 42 years.

The learned appellate court also considered the evidences and materials available on record and summarized its findings in Para-13 of its judgment which reads as under:

"13. Summing up the above discussed evidence, it can be reasonably inferred that the prosecution could not prove its case upto the hilt. As per the above discussed evidence of P.W.-6, Enquiry Officer, it is established that he vide para-4 of deposition had not verified the documents of the accused-appellant on the strength of which he (accused-appellant) has taken the defence from the very beginning that he had purchased the seized articles from Maa Durga Trading Company and Krishna Enterprises and as such, the claim of the accused-appellant cannot be disbelieved. Besides, D.W.-3 who happens to be an office suptt. of the office of PWI, Jasidih of Eastern Railway has categorically stated that vide Ext.-B, some of the seized articles from the possession of the accused was delivered to the representative of auction-purchaser Sri Krishna Enterprises and in the circumstances, I find that the prosecution neither disputed the same (Ext.-B), nor even put the suggestion to the witnesses of the defence that the exhibited documents of him (accused-appellant) is forged. It would not be out of place to mention that in the presence of the claim and contention of the defence that the seized articles were purchased by him from auction purchaser namely, Sri Maa Durga Trading Co. and Krishna Enterprises, the onus of proving the materials that the same belongs to Railways was on the prosecution, but it could not be duly discharged, rather the defence proved that the same belongs to him."

After hearing the counsel appearing on behalf of the parties and going through the impugned judgment, this Court finds that the learned appellate court has dealt with each and every evidence on record and P.W.-3 has clearly stated in his evidence that no label or case number was mentioned on the material exhibits and there was no specific mark showing that the properties were of the Railways and he has also stated that the articles were kept in sac, but the same were not sealed, rather it remained opened and the seized articles were seized on tractors and were kept in open in course of transportation. The same stand also reflects from the evidence of P.W.-4 who has also stated that there was no specific mark on the material exhibits and the case number was also inscribed on the same and no level was affixed. Considering the aforesaid aspects regarding the material exhibits and other materials on record, learned appellate court was of the view that the prosecution could not prove the case up to the hilt i.e. the prosecution could not prove the case beyond shadow of all reasonable doubt.

Learned appellate court also considered the fact that a defence had been taken since beginning that the Opposite Party No.2 had purchased the seized articles from Maa Durga Trading Company and Krishna Enterprises and the learned appellate court was of the view that such claim on the part of the accused could not be disbelieved. The learned appellate court also considered that D.W.-3 who happened to be an office superintendent of the office of P.W.I., Jasidih of Eastern Railway had categorically stated that vide Exhibit-B, some of the articles seized from possession of the accused was delivered to the representative of the auction purchaser Sri Krishan Enterprises and in this background, the learned appellate court found that the prosecution neither disputed the same, nor ever put suggestion to the witnesses of the defence that the documents exhibited by the accused are forged. Learned appellate court was of the view that in the presence of the claim and contention of the defence that the seized articles were purchased by the accused from auction purchaser namely, Sri Maa Durga Trading Company and Krishna Enterprises, onus of proving that the materials belong to Railways was on the prosecution and it was not discharged from the side of the prosecution and the defence proved that the same belonged to him. Considering the totality of the aspects, the learned appellate court allowed the appeal and acquitted the accused from the charges.

This Court finds that the learned amicus appearing for the petitioner could not point out any material to controvert the findings of the learned appellate court.

Considering the aforesaid facts and circumstances of the case and the materials placed on record, this Court is of the view that the view taken by the learned appellate court is certainly one of the possible views. This Court is also of the considered view that once the appellate court arrives at a conclusion and the judgment of acquittal is passed in favour of the accused person after considering the materials on record, the scope of interference in revisional jurisdiction becomes very limited. No perversity, as such, has been pointed out by the learned Amicus Curiae appearing on behalf of the petitioner calling for interference in the impugned judgment of acquittal.

Considering the limited scope of interference in revisional jurisdiction, this Court finds no reason to interfere with the impugned judgment of acquittal passed by the learned appellate court and accordingly, the present criminal revision application is hereby dismissed.

Before parting with the judgment, this Court appreciates the valuable assistance rendered by the learned Amicus Curiae.

The Secretary, Jharkhand High Court Legal Services Committee, Ranchi is directed to ensure that the legal remuneration of the learned Amicus Curiae is duly paid to him upon submission of bills by him as per the usual norms.

The office is directed to provide a copy of this Judgment to Mr. Saurav Kumar, the learned Amicus Curiae and also to the Secretary, Jharkhand High Court Legal Services Committee, Ranchi.

Let the lower court records be sent back to the court concerned.

Let a copy of this Judgment be communicated to the learned court below through 'e-mail/FAX'.