Rajendran and another vs State

David Annoussamy, JJ.—This is a revision petition by two of the accused.

The case of the prosecution is as follows: A1 is a Khalasi in the Railway Department attached to the Inspector of Works (P.W. 1) Grade I, Madurai. A2 is the night watchman in respect of the godown in charge of P.W. 1. On 18th June, 1981, P.W. 1 accompanied by P.W. 6 . Head Constable of the Railway Protection force were going on rounds. They saw A3 riding a cycle rickshaw followed by A4, a middleman. P.W. 1 and P.W. 6 intercepted A3 and A4 and found them to be in possession of seven bags of cement for which they were unable to account. They were arrested and the bags of cement were seized. They obtained statements Ex. P2 and P3 respectively from A3 and A4. On the basis of the statements, they went towards the godown where they found A1 and A2 sleeping cut side. The occurrence took place at 3.30 a.m. A1 gave a statement Ex.P5 and A2 gave another statement Ex. P4. It was gathered from P.W. 4. Head-Clerk that 704 bags of cement were received upto 18th April, 1981, and that 500 bags of cement were released and out of the 204 bags which should be available, there was a shortage of seven bags. They have also recovered a key from A1 with which the lock of the store room where the cement bags were stored could be opened. There upon, A1 to A4 were prosecuted for offences under S. 3 of the Railway Property Unlawful Possession Act 1966. They were all found to be guilty. A3 and A4 were sentenced to pay a fine of Rs. 100 and A1 and A2 were sentenced to pay a fine of Rs. 150, and in default of payment, to undergo rigorous imprisonment for six months. The lower appellate Court, namely III Additional Sessions Judge, Madurai, by judgment dated 12th December, 1984, confirmed both the conviction and the sentence. Aggrieved by that judgment, accused 1 and 2 have preferred this revision case.

The learned Counsel for the revision petitioner contended that the conviction against A1 and A2 was not supported by legal evidence. It is admitted that as per the ruling of the Supreme Court in The State of Maharashtra Vs. Vishwanath Tukaram Umale and Others, , even if the accused were not found in possession of the railway property, it was permissible for the prosecution to allege and prove that they had been in possession of that property at an anterior point of time in order to attract the application of S. 3. But, S. 3, it is argued, shifts the burden of proving that the property came to the possession of the accused lawfully, and on account of this shifting of burden in respect of one of the ingredients of the offence, the fact of possession should be proved to the hilt. The case of the revision petitioner is that such proof is not available in the present case. In fact, to connect the accused with the offence, we are left only with the statements of A1 and A2, which they have retracted and with the seizure of a key (M.O.2) from A1, which could open the godown where the cement bags were stored. There is no adequate corroboration of the evidence consisting of the retracted confession. On the contrary, the version contained in the statement is at variance with other items of evidence of the prosecution. The evidence of P.W.4 is that seven bags out of the bags stored were actually missing whereas the confessional statement of A1, is that he has been stealing away some quantity of cement from each bag of cement which he was delivering, that he had put such cement into some other bags which he bad kept separately and delivered to A3 and A4 in which case there should not be any shortage in the account of bags.

The offence under S. 3 of the Railway Property (Unlawful Possession) Act, is a serious one, entailing minimum punishment and also shifting the burden of proof in respect of one ingredient. Therefore though even a transient possession may come within the mischief of that section, such possession should be proved adequately. In this case, it has not been shown beyond reasonable doubt that the seven bags which have been recovered from A3; and A4 were at any point of time in the possession of A1 and A2 before they reached the hands of A3 and A4. Therefore, the conviction is not sustainable. It is open; to the Railway Authorities to take such action as they deem fit, against their employees for whatever lapses and misconduct they might have noticed in the transaction, but no conviction is possible.

In the result, the revision case is allowed, and the conviction and sentence are set aside.