Ravindra Pratap Singh vs Rashid Ahmed and Others

Subrata Talukdar, J.—1. In this criminal appeal the judgment and order of acquittal dated 21st November, 2007 passed by the Ld. Additional Chief Judicial Magistrate (for short Ld. ACJM), Durgapur in CR 116 of 2000 arising out of Andal Police Post Case No. 4 of 2000 is under challenge. The appellant before this Court is a Railway Officer and, according to the original complaint, on 10th of April, 2000 at about 19:00 hours a secret information was received by the complainant, Tarak Banerjee, Inspector of the Railway Protection Force (for short RPF), Andal that one wagon bearing No. ER/BCXC 39780 was being loaded at Andal Railway Yard for movement to Bally. Acting on the secret information the complainant-Banerjee along with other Railway Officers raided the departure yard and, on checking the doors of the wagon, found the same to be locked with seals and ''nut bolts''. It could be ascertained from initial enquiry that one M/s. Yogesh Enterprise of 135/1, Girish Ghosh Road, Belurmath, Howrah purchased about 42 mt of auctioned railway materials on the 16th of March, 2000 and delivery of the auctioned materials was fixed at Andal Depot on 16th of April 2000. At the time of delivery the following Railway Officers namely, Md. Rashid Ahmed- Depot Store Keeper, Om Prakash Yadav- Stock Verifier and Head Constable R.J. Singh of RPF Post, who are also the respondent Nos. 1, 2 and 3, were present.

It could also be ascertained that one Ajay Sharma, duly authorised by a Special Power-of-Attorney from M/s. Yogesh Enterprise (supra), attended the delivery as agent of the auction purchasers. Upon weighment of the wagon on 11th April, 2000 it showed a weight of 89.23 mt thereby indicating that minus the weight of the empty wagon the railway materials loaded were to the tune of 61 mt, i.e. around 19 mt in excess of the auctioned delivery of 42 mt.

The complaint further goes on to state that loaded materials were unloaded from the wagon and, during checking, huge quantities of railway materials which were not a part of the auction were found to have been loaded in excess. Accordingly, the materials were seized and the auction purchasers namely, one Govind Agarwal, R.S. Prasad and Ajay Sharma, all of M/s. Yogesh Enterprise (supra), were charged with violation of Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (for short the RPUP Act).

The Railway Officers who were named in the complaint were charged with criminal connivance for the commission of the offence and, therefore charged with violation of Section 4 of the RPUP Act read with Section 120B of the Indian Penal Code.

PW1 is the complainant, the said Sri Tarak Banerjee. In his deposition PW1 reiterates the stand taken by him in his written complaint. PW1 states that on 11th April, 2000 when the wagon was weighed, it was found that 19.23 mt of railway materials were in excess. PW1 further corroborates that the materials in the loaded wagon were cross-checked with the list of auctioned materials and, several items which were not within the auctioned list were found inside the wagon. Accordingly, a Seizure List (SL) was prepared and, prosecution initiated against the accused persons.

In his cross-examination PW1 goes on to state that the seal of the wagon was found to be intact and also stated that the Railway Receipt (for short RR) was issued after the wagon was weighed. PW1 has further deposed that the case was not started collusively although he did not inform his superior authority of his intention to conduct a raid at the Railway Yard at Andal.

PW2 is an Inspector of the RPF and confirms the fact that on 11th April, 2000 the said wagon was weighed and loaded with 61.23 mt materials whereas auction was held for only 42 mt. Therefore, PW2 confirms the fact that 19.23 mt of excess materials were found in the wagon.

PW2 further deposes that on 12th April 2000 the wagon was placed at the goods shed and the seal of the wagon was opened in presence of witnesses before whom the materials were unloaded. PW2 confirms that the complainant seized the materials under a proper SL. PW2 also put his signature to the SL.

In his cross-examination PW2 sticks to his original deposition with the additional fact that the wagon was seen by him at the goods shed at Andal Yard on 13th of April, 2000.

PWs 3 and 4, Constable and Head Constable of the Railways respectively, confirm the raid conducted by PW1 on 10th of April, 2000 at Andal Yard connected to the said wagon. PW3 further points to the fact that steps were taken by PW1 to check the seal of the wagon and make arrangements for weighment of the wagon to ascertain the total quantum of goods loaded.

PW5 was a Junior Engineer of the ER at Andal Station at the relevant point of time. In his deposition PW5 gives the detailed list of 17 items of railway materials which were found in the wagon and confirms the fact that such railway materials were for permanent use of the Railways and in serviceable condition. Some of the materials mentioned by PW5 were not available in the open market and therefore not subject to any auction.

PW6 was a Junior Engineer (Works) posted at Andal and deposes that on 13th of April, 2000 the Divisional Engineer, Asansol directed PW6 to attend the auction of the materials in presence of several other officers of the Railways. PW6 further deposes that on tallying with the Issue Note at Andal Platform, excess materials were found which did not feature in the Issue Note. The Goods Clerk, one Gautam Das, prepared a note of the railway materials loaded in the wagon which was signed by PW6.

PW7 was a Commercial Clerk and posted at Andal in such capacity on 10th April, 2000. PW7 confirms the fact that one, Ajay Sharma on behalf of M/s. Yogesh Enterprise produced a forwarding note No. 661 dated 10th July, 2000 for loading scrap materials in the wagon in question. After loading the wagon PW7 further confirms the sealing of the wagon in presence of Railway Officers. PW7 deposes that he issued the RR No. 088983 on the 10th of April, 2000 for the materials which were booked from Andal to Bally. He certifies to the RR issued by the Goods Clerk, Gautam Das whose handwriting and signature were identified by him as Exbt.5.

PW8 was the Head Goods Clerk at DTPS, Waria and, on 12th of April, 2000 was posted at Andal as a Head Goods Clerk. PW8 confirms the sequence of events starting with the raid by PW1 on 10th April, 2000 and culminating on 13th of April, 2000. PW8 confirms the statement of PW5 that 17 numbers of items were found in the wagon and, he put his signature on the note marked as Exbt. 4/2. The list of materials being Exbt. 4/2 being part of the SL, was handed over to PW1.

PW9 was the Weighment Clerk posted at Andal and confirms that the loaded wagon was found to be 89.23 mt. The weight of the empty wagon was 28.20 mt. Therefore the weight of the materials inside the wagon was 61.03 mt.

PW10 was the Peon and working under the Yard Superintendent at Andal and confirms the events of 10th April, 2000 on which date he accompanied several other Railway Staff to inspect the wagon.

PW11 was the Commercial Traffic Inspector of Asansol Railway Station and confirms that the incident took place on 10th April, 2000. PW11 also confirms that on instructions from the Deputy Commercial Manager, Asansol he jointly checked the wagon on 12th April, 2000. The results of the check were duly appended in a note.

PW12 was the Head Weighment Clerk posted at Andal Shed. PW12 confirms the fact that on 20th May, 2000 one Inspector, Anup Prosad of Andal Police Post came to his office and asked him to produce the seal card of the said wagon as well as the RR books. Both the seal card and the RR books were handed over by PW12 to Inspector Anup Prosad who received the same by filing a proper SL. The SL was signed by PW12.

PW13 was the first Enquiry Officer (EO) of the case and, in his deposition states that on 11th April, 2000 the wagon was weighed at Andal when more than 18 mt materials were found to be in excess. Thereafter the wagon was taken into the goods shed, unloaded and contents were checked in presence of several Railway Officers. Even at the time of joint check in the presence of several Railway Officers, 18 mt were found to be in excess.

PW14 was the second EO who took over the enquiry from PW13. PW14 deposed that he examined the relevant witnesses, visited the place of occurrence and also inspected the site plan prepared by PW13. PW14 deposes that the certified RR is marked Exbt.10. In the course of enquiry PW14 recorded the statements of several accused persons and explained the contents of such statements to them. PW14 also marked the seal card of the wagon as E11 and thereafter he filed an enquiry report against the auction purchaser under Section 3(a) of the RPUP Act as well as against the allegedly complicit Railway Officers under Section 4 of the RPUP Act. PW 14 testifies to the fact that the wagon was seized, checked and verified upon following due procedure along with the further fact that the seal of the wagon was broken on 12th of April, 2000.

PW16 was the Senior Inspector of Stores and Accounts and testifies to the fact that as per direction of the Senior DFM, Asansol he was sent to Andal for reweighment of the said wagon and made the reweighment in presence of RPF personnel. PW16 claims to have found 60 mt of railway materials split into 17 types. PW16 points out that out of the auctioned materials of 42 mt, 18 mt were found to be in excess. The excess materials were seized by the RPF by preparing a proper seizure list and by pasting labels on the seized materials. The SL was signed by PW1 and marked E-4.

All the accused persons were given the opportunity to record their statements under Section 313 of the Code of Criminal Procedure. Each of the accused persons pleaded not guilty and declined to give any evidence in their defence.

By the impugned judgment and order of acquittal dated 21st, November, 2007, the Ld. ACJM, Durgapur, after a detailed discussion, came to the following conclusions:--

"a) That the prosecution was required to prove that the property in question belongs to the Railways and property was reasonably expected to have been stolen or unlawfully obtained by the accused persons who must be found to be in possession of the property;

b) All the witnesses have stated that there was excess loading in the said wagon. The wagon was detected by PW1 under seal standing at the UP Departure Yard, Andal. There is no evidence on record that the materials kept in the wagon under the seal were handed over to the accused, Govind Agarwal.

c) PW1 failed to state that there was a tare weighment of the wagon. It was stated by him on 11th April, 2000 that the wagon was weighed and, it was found that 19.23 mt of railway materials were in excess. However, PW1 failed to state about the tare weighment of the said wagon.

d) PW7 has stated that after loading of the said wagon with scrap materials he sealed the wagon in presence of J K Das and other RPF staff and issued the RR. However, PW7 failed to throw light on the rule of weighment after auction of the railway property.

e) PW8, Gautam Das, Head Goods Clerk stated that the checking of the materials was completed on 13th September, 2000 at 21:20 hours. During checking PW1 along with other officers were present. A note of 17 items kept in the said wagon was prepared. PW8 is also silent about tare weighment of the wagon.

f) PW9, being the Weigh Clerk, has stated that the loaded wagon was 89.23 mt on 11th April, 2000 after weighment. The weight of the empty wagon was 28.20 mt and the weighment of the materials was 61.03 mt. In his cross-examination PW9 has stated that did not take the weight of the wagon on 12th April, 2000.

g) Therefore, from an assessment of the evidence of all the above witnesses the Ld. Trial Court found contradictions. In the evidence of PWs 1 and 3 regarding the weighment and tare weighment of the wagon, the Ld. Trial Court observed that the witnesses have stated different dates of weighment of the wagon. There are also inconsistencies in the evidence of PW13, the first EO. The inconsistencies are also found in the evidence of PW14 who claims not to have seized the stock register and also did not tally the materials with the stock register since the materials were without labels.

h) On all the above counts the Ld. Trial Court found that the prosecution has failed to prove the charge under Section 3(a) of the RPUP Act, 1966 against the said Govind Agarwal. The Ld. Trial Court also found that both Govind Agarwal and Radheyshyam Prosad have admitted in their statements that the railway materials were purchased by auction and there is no evidence to show that such materials were handed over to the auction purchasers. Therefore, the question of violation of Section 3(a) of the RPUP Act, 1966 against the auction purchasers, namely, Govind Agarwal and Radheyshyam Prosad does not arise.

i) With respect to the Railway Officers charged under Section 4 of the RPUP Act, the Ld. Trial Court came to the conclusion that no sanction was taken to prosecute them. Moreover, no enquiry was held to discover their role in the alleged offence. The Ld. Trial Court further went on to hold that the said Railway Officers were posted at the Yard to look after the materials kept therein and for nothing else. There is no case made out against the said three Railway Officers of taking an active role in loading the wagon with railway materials in excess. j) Therefore, the prosecution, according to the Ld. Trial Court, failed to prove beyond all reasonable doubt the guilt of the Railway Officers under Section 4 of the RPUP Act, 1966. Accordingly, the accused persons were found not guilty, hence acquitted and discharged from their respective bail bonds."

Sri Krishna Das Poddar, Ld. Counsel appearing for the Railways-appellant argues the following points:--

"i) That there is no dispute that the properties in issue are railway properties in view of the admitted nature of the properties which were railway items and recovered from a railway wagon at a railway yard. Therefore, the onus of proof of the property, not being acquired through unauthorized means, lies on the auction purchasers.

ii) Similarly, the onus of proof that the properties were not illegally dealt with by Railway Officers in connivance with the auction purchasers also lies upon the respondents-accused Nos. 1, 2 and 3.

iii) Having regard to the principle of law as recorded in paragraphs i) and ii) above, according to Sri Poddar, the full force of Section 3(a) and Section 4 of the RPUP Act applies to each of the accused persons. In support of his submissions, Sri Poddar relies upon the judgment of the Hon''ble Apex Court reported in , 1979 (4) SCC 23 in the matter of State of Maharashtra v. Vishwanath Tukaram Umale & Ors. as well as a decision of this Hon''ble Court reported in CRA 250 of 1988 in the matter of A. Pandey v. Gopal Das & Anr..

iv) Sri Poddar next argues that admittedly the PWs have stated in common that the wagon was found to have been loaded in excess. The excess weight of the wagon has been recorded at several places in the evidence of the PWs.

v) The further point argued by Sri Poddar is that the excess weight of the wagon was relatable to railway materials amounting to at least 17 number of items which have been testified to by PWs 5 and 8.

vi) It is an admitted position that the respondent No. 4, Govind Agarwal along with Radheyshyam Prosad of M/s. Yogesh Enterprise, Belurmath had sent their Power-of-Attorney holder, one Ajay Sharma, to take delivery of the auctioned materials. At the time of raid by PW1 on the basis of a secret information the accused persons were identified and some of them could be apprehended along with the excess materials. The SL was duly prepared and it is also not in doubt that RRs were issued in favour of the auction purchaser. Therefore, Sri Poddar argues that the RRs constitute enough evidence of delivery of the materials in favour of the auction purchasers.

vii) The common narrative of the PWs, according to Sri Poddar, commencing with the sequence of events of the raid on the 10th of April, 2000 and culminating in the filing of the written complaint by PW1 consistently appears from the evidence of all PWs and, minor inconsistencies apart, the prosecution version could not be shaken.

viii) Sri Poddar next makes the important point that in the event the said Govind Agarwal, i.e. the accused No. 4 denies ownership of the materials in the wagon, the said Govind Agarwal should not have approached this Hon''ble court by way of filing a Criminal Revisional Application being CRR 1868 of 2008 for return of the seized materials, post the judgment and order of acquittal dated 21st of November, 2007 passed by the Ld. ACJM, Durgapur. The fact that Govind Agarwal approached this Hon''ble Court for return of the seized materials consequent to the order of acquittal is proof enough of the ownership of the materials claimed by the auction purchasers.

ix) Sri Poddar strongly makes the point that the Ld. ACJM, Durgapur misapplied the provisions of the RPUP Act and shifted the onus of proof on the prosecution.

x) Sri Poddar also argues that in the event the accused persons were in a position to provide evidence of their innocence, such accused persons ought to have come forward to adduce evidence in their defence. However, from their statements under Section 313 CrPC it is apparent that the accused persons merely denied their guilt and refused to adduce evidence in their favour. Such conduct of the accused persons, Ld. Railway Counsel argues, is a pointer to their complicity and, was erroneously not noticed in the judgment and order of acquittal passed by the Ld. ACJM.

xi) Ld. Railway Counsel also argues that the RPUP Act, 1966 is a special statute and therefore, the presumption of guilt and innocence under the RPUP Act cannot be treated in a manner akin to the general provisions of the criminal law. Presenting before this Court the language of both Sections 3(a) and 4 of the RPUP Act, Sri Poddar argues that when every fact and circumstance points to the seizure of admitted railway materials from a railway yard pursuant to an auction purchase which is confirmed by a RR, the onus of proving that the excess materials found in the wagon were neither stolen nor unauthorizedly acquired lay on the auction purchasers. Additionally, the onus of proving lack of complicity also lay on the other accused persons being the Railway Officers. Ld. Railway Counsel submits that the judgment and order of acquittal dated 21st of November, 2007 has frustrated the very purpose of the enactment, i.e. the RPUP Act.

xii) The final and broader point made by Ld. Railway Counsel is that the RPUP Act was enacted for the purpose of preventing the social menace of pilferage of railway property. The crimes punishable under the RPUP Act are crimes against society and, the nature of such crimes ought to have been taken notice of by the Ld. Trial Court."

Arguing for the respondent No. 4, Govind Agarwal, Sri Sandipan Ganguly, Ld. Counsel makes the following points:--

"1) That the scope of interference by this Court sitting in appeal against an order of acquittal is limited. Relying upon a line of decisions reported in , 1987 (2) SCC 529 in the matter of Tota Singh & Anr. v. State of Punjab, , 1996 (9) SCC 225 in the matter of Ramesh Babulal Doshi v. State of Gujarat and in , 2010 (13) SCC 657 in the matter of Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. v. State of Maharashtra, Sri Ganguly makes the principal point that an Appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible and, even though the view of the Appellate Court may appear to be the more probable one. In view of the fact that the Ld. Trial Court has the benefit of watching the demeanour of the witnesses and, is the best judge of their credibility, while sitting in judgment over an order of acquittal the Appellate Court is only required to examine whether the Ld. Trial Court committed a manifest illegality or arrived at a perverse conclusion which could not have been judiciously and reasonably arrived at.

2) On the strength of the above noted principle of law, Sri Ganguly submits that no material has been produced by the prosecution before this Hon''ble Court which renders the appreciation of evidence by the Ld. Trial Court to be perverse. Each and every material piece of evidence pertaining to the respondent No. 4, Govind Agarwal has been considered by the Ld. Trial Court and discussed. Sri Ganguly argues that under Section 3 (a) of the RPUP Act it was incumbent upon the prosecution to prove that the said Govind Agarwal was in unlawful possession of any railway property which may have been stolen or otherwise unlawfully acquired. The principal duty of the prosecution lay in proving the possession of the railway goods by Govind Agarwal which were found unlawfully loaded in excess in the wagon in issue. Therefore, Sri Ganguly argues that the term possession needs to be strictly construed since the RPUP Act is a penal statute.

3) Discussing the evidence adduced by the prosecution on the above noted point of possession Sri Ganguly takes this Court to the evidence of PW6. PW6 appears to have compared the goods of the wagon with the Issue Note lying on the platform and, reportedly found the materials in excess. Therefore, Sri Ganguly argues that the Issue Note is a vital document to prove the nature and quantity of the materials found in the wagon. Only the Issue Note could have clinched the prosecution case that the articles with their weight were purchased in auction by the said Govind Agarwal. However, the Issue Note was neither seized nor produced by the prosecution thereby vitiating the claim of the prosecution that excess materials than those purchased in the auction were found to be loaded in the wagon.

4) Next, turning to the evidence of PW7, Sri Ganguly argues that none of the documents, viz. the Forwarding Note or the Advice Memo were produced as exhibits by the prosecution in the trial. Therefore, drawing the attention of this Court to the absence of the Issue Note in the trial, Sri Ganguly argues that in the absence of all the above noted documents it cannot be concluded that railway property in excess was purchased in the auction.

5) Discussing the evidence of PW11, Sri Ganguly makes the point that the weighment of the wagon to prove that it was loaded with excess materials was inconclusive and, in absence of such weighment, it cannot be presumed the wagon was loaded with excess railway materials.

6) With reference to the evidence of PW13, Sri Ganguly submits that as the Enquiry Officer it was the duty of PW13 to produce the list of seized articles, the chart connected to the alleged excess materials in the wagon or, seizure of any slip connected to the weight of the empty wagon. Again, in the absence of the above documents, it cannot be said that the wagon was loaded with excess auction-purchased materials.

7) Sri Ganguly proceeds to develop the point of possession under Section 3 of the RPUP Act which ought to be construed qua the respondent-Govind Agarwal. With regard to the above noted point Sri Ganguly argues that it is an admitted position that at the time of seizure the said Govind Agarwal was not present at the Up Departure Yard line of Andal.

Referring to the evidence of PW4 Sri Ganguly submits that the loading of the wagon is supervised by the officers of the RPF. From the evidence of PW4 it is apparent that the weighment of the wagon was to be done prior to being handed over to the auction purchasers. However, no evidence has been adduced to reflect that there was any weighment in the departure yard prior to release of the wagon for delivery to the auction purchaser. Furthermore, in view of the security maintained in the departure yard by the RPF it cannot be assumed by any stretch of imagination that the auction purchaser was, at the material point of time, in possession of the materials found in the wagon.

8) From the evidence of PWs 7 and 8, Sri Ganguly elaborates the point that there exists no document to reflect the position that the auction - purchased goods were actually handed over to the auction purchaser, Govind Agarwal.

9) The final point of Sri Ganguly is with regard to the sanctity of the prosecution case concerning the final weight of the wagon and the number of railway items found therein. Sri Ganguly submits that the wagons prior to delivery are sealed and the said seals are important pieces of evidence to show that the goods loaded were preserved in their original form. However, such seals, although being a vital part of the prosecution evidence were never produced at the trial. Pointing to the evidence of PW8, Sri Ganguly submits that PW8 claims to have received broken seals and the seals were never presented during the trial. In the above view of the matter there can be no natural presumption that the auction purchaser was in "constructive possession" of the railway materials found in the wagon.

10) Sri Ganguly also argues it was important to take the tare weight of the wagon which was approximately assumed to be 28.20 mt. Such tare weight could not be considered at the trial merely on an assumption but had to be definitely adduced as a part of the documentary evidence to dispel any suspicion with regard to the excess materials loaded in the wagon. In the absence of clinching evidence on the tare weight of the empty wagon no definitive conclusion can be drawn in favour of the prosecution theory that excess materials were loaded on the wagon beyond what was purchased at the auction."

Arguing on behalf of the accused Nos. 1, 2 and 3 - the Railway Officers who were charged under Section 4 of the RPUP Act, Sri Ajay Debanth, Ld. Advocate submits the following:--

"I) There is no evidence to suggest that the said Railway Officers actively connived in loading the wagon with excess materials beyond what was purchased at the auction.

II) Taking a cue from the argument of Sri Ganguly (supra) that it could not be proved that the auction purchasers purchased the railway materials which were handed over to them, the derivative point that the Railway Officers connived in handing over the auctioned materials to the auction purchasers does not arise. Sri Debnath submits that no sanction was taken prior to initiating prosecution against the accused Nos. 1, 2 and 3. There is no evidence to suggest that the said Railway Officers played an active part in loading the railway wagon in excess. Importantly, PW8, Gautam Das, who issued the RR was not made an accused in this case.

III) Sri Debnath further argues that the Ld. Trial Court considered each of the pieces of the evidence with perspicacity and the order of acquittal deserves no interference.

IV) In support of his arguments Sri Debnath relies upon the following decisions:--

AIR 1934 Privy Council 227; , 2004 (9) SCC 193; , 2002 (6) SCC 470; , 1987 (2) SCC 529; 1977 Cr LJ 853; 2006 Cr LJ 1836; , 2003 (3) SCC 21; , 2001 (7) SCC 148; , 1988 (2) SCC 557; , 1998 (6) SCC 629; , 2010 (5) SCC 1 and 1983 Cr LJ 466."

Having heard the parties and considering the evidence on record this Court arrives at the following findings:--

"A) That in the written complaint treated as the FIR there is mention of only railway materials. No materials other than railway materials packed in excess have been seized from the wagon in issue. There is also no dispute about the fact that such materials can only be used for railway purposes (Ref: Page 5 of the Paper Book (PB).

This Court also notices that the written complaint is unambiguous about the nature of the events commencing from the raid on the 10th of April, 2000 (Ref: Page 8-PB).

B) From the evidence of PW1-the complainant, the contents of the written complaint have been clearly supported. PW1 states in his cross-examination that the seal of the wagon was handed over to Gautam Das, PW8 (Ref: Page 20-PB).

PW1 further deposes that the railway yard is a protected place where access is restricted. Therefore, the presumption of unlawful possession of railway properties as found on the wagon, can only lie with the auction purchasers who, at the material point of time, were connected to such materials and, had access to such materials through their authorized agent (Ref: Page 21-PB). This Court is also required to notice from the evidence of PW1 that at no point of time any presumption of mala fides against any of the accused persons qua PW1 has been demonstrated.

C) From the evidence of PW2 (Ref: Page 23-PB) it is noticed by this Court that the authenticity of the information regarding the wagon being overloaded and bound out of the departure yard at Andal Station is admitted. The excess weight of the wagon as discovered during its weighment is also clearly stated by PW2. PW2 further deposes that the wagon was placed in the goods shed and the seal was opened after observing all formalities (Ref: Page 24-PB). PW2 admits to no ambiguity while appending his signature on the SL along with PW1.

In his cross-examination (Ref: Page 25-PB), PW2 speaks of the railway articles in the wagon being tallied in his presence with the Stock Register.

D) PW3 (Ref: Page 27-PB) deposes that all steps were taken to seal and guard the wagon.

E) PW5 (Ref: Page 31-PB), who is specially trained by the Railways in respect of the inspection of the materials, has given the details of the railway materials found in the wagon. In view of his special training PW5 is equipped to testify to the nature of the railway materials.

The cross-examination of PW5, in the opinion of this Court, is one of general denial and does not shake the substance of his evidence.

F) PW6 (Ref: Page 34-PB) also testifies to the excess materials qua the Issue Note.

PW7 (Ref: Page 35-PB) testifies to the issue of the RRs in favour of the auction purchasers. PW7 further deposes that the RR was issued along with the Forwarding Report (Ref: Page 37-PB).

G) PW8 (Ref: Page 38-PB) testifies to the checking of the wagon for the discovery of its excess materials. In his cross-examination PW8 narrates the entire sequence of events including the events surrounding the seal of the wagon (Ref: Page 41-PB).

H) PW13 is the first Enquiry Officer (for short EO) of the case. PW13, although does not appear to have attended to the enquiry with competence, however testifies to the essential nature of the charge surrounding the excess loading of the wagon.

I) Any lacuna in the conduct of enquiry by the first EO, that is PW13 is, in the opinion of this Court, made good by PW14, who is the second EO. PW14 narrates the entire sequence of the enquiry including, having seized the seal card of the subject weighment (Ref: Page 57-PB). The complete picture of facts surrounding the sealing of the subject wagon is also testified to by PW14, including the fact that the subject wagon was kept under proper railway guard (Ref: Page 57-PB).

Added to the above evidence of the PWs this Court is again required to notice that it was the responsibility of the accused to offer witnesses to rebut the prosecution version. However, each of the accused in their statements under Section 313 CrPC (Ref: Pages 70, 72, 74, 76 and 78-PB) declined to place evidence in defence.

J) From the conspectus of the evidence of the PWs as noticed above this Court finds that in spite of the attempt by the Ld. Counsel for the respondents-accused persons to highlight inconsistencies, the essential nature of the events commencing from the raid on the 10th of April, 2000 leading to the discovery of the excess materials in the wagon have not been shaken. From the evidence of PW5 and, particularly to meet the arguments advanced by Sri Ganguly, it can be noticed from the evidence on record that the missing seal was handed over to the Goods Supervisor at Andal (Ref: Page 19-PB). It can be also gathered that prior to being placed at the departure yard the subject wagon was weighed after the seal was opened and, the excess materials found in the wagon have been consistently testified to by the PWs.

K) On the argument advanced by the Ld. Counsel for the accused-respondents that the tare weight of the wagon was required to be taken, it transpires from the evidence of PWs and, particularly PW9, who was none other than the Weigh Clerk, that the empty wagon weighed 28.20 mt whereas the total materials unloaded were to the extent of 61.03 mt. Therefore, the total wagon was found to weigh 89.23 mt thereby leading to an accurate arithmetical formulation that railway materials in excess of the auction purchase of 42 mt were loaded on the wagon.

Thereafter, PW5, PW6 and PW14 testify to the nature of the railway materials recovered and, such testimony has not been shaken in their cross-examination.

L) This Court is also required to notice that the Ld. Counsel for the respondents-accused have repeatedly attempted to pick holes in the prosecution version of events by focusing on technicalities surrounding the rule of evidence as understood in criminal law. However, such rule of evidence as sought to be highlighted by Ld. Counsel for the respondents-accused persons requires to be tested against the special provisions of the RPUP Act. With further reference to the above noted point this Court is required to notice the authority of the Hon''ble Apex Court in the matter of State of Maharashtra v. Vishwanath Tukaram Umale & Ors. reported in , 1979 (4) SCC 23. The Hon''ble Apex Court was pleased to discuss the extent of application of Section 3 of the RPUP Act as follows:--

"Section 3 which provides the penalty for unlawful possession of rail way property 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 A shall not be less than one year and such fine shall not be less than one thousand rupees;

(c) for the second or a 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."

The essential requirements of the section therefore are that

(i) the property in question should be railway property,

(ii) it should reasonably be suspected of having been stolen or unlawfully obtained, and (iii) it should be found or proved that the accused was or had been in possession of that property. It is not in dispute before us that the property in question was railway property within the meaning of section 2(d) of the Act. It is also not in dispute before us that it was reasonably 1 suspected of having been stolen or unlawfully obtained. It is, not disputed therefore that two of the three essential requirements of section 3 were shown to exist at the time when the question of framing the charge came up for consideration. The question which remained for consideration was'' whether it could be said that the accused were found or were proved to have been in possession of the railway property. It was therefore permissible for the prosecution to establish, either that the accused were "found" to be in possession of the railway property, or that they were provide "to have been" in possession thereof. As accused 1, 2, S and the absconding 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, in order to attract the application of section 3."

M) The principle of law as enunciated in , 1979 (4) SCC 23 (supra) was adopted by this Court in CRA 250 of 1988 in the matter of A.N. Pandey v. Gopal Das & Anr.. While discussing the provisions connected to Section 3(a) of the RPUP Act, this Court was of the following view:--

"Having heard the respective counsel and giving considering the materials on record this Court is of the view that once the Ld. Magistrate was satisfied that the properties being A.C. bearing plates and permanent way materials which are exclusively earmarked for use by the railways stood recovered from the shop and godown of the accused persons, it was incumbent upon the Ld. Magistrate to apply the onus of proof of lawful possession of such property on the accused persons in terms of Section 3 of the RPUP Act.

To the mind of this Court it does not appear anywhere in the evidence that the properties were of a nature which were not exclusively earmarked for use by the railways. From the evidence of P.Ws. 6 and 7 the fact of search and seizure as well as the nature of the property stood established. The said independent witnesses namely, P.Ws. 6 and 7 corroborated the prosecution charge in all essential aspects. At paragraphs 8 and 9 of the impugned judgement (supra) the Ld. Magistrate has recorded his satisfaction with regard to such corroborative evidence. The Ld. Magistrate also recorded his satisfaction that the accused persons were in possession of such properties. Furthermore the accused persons fled from the scene of search and seizure there by pointing the needle of suspicion towards their complicity in the offence.

In the light of the above, in the considered opinion of the Court, it was incumbent upon the Ld. Magistrate to apply section 3 of the RPUP Act and require that the accused persons prove that such railway property came into their possession lawfully and, in the absence of such proof consequential orders ought to have followed.

The Ld. Magistrate failed to appreciate the true scope and intent of Section 3 of the RPUP Act that the onus of reasonable suspicion of the railway property having been stolen and unlawfully obtained having stood satisfied at the conclusion of the search and seizure from the godown of the accused persons, the onus now shifted upon the accused to prove such possession to be lawful. In the further view of this Court the Ld. Magistrate erred in holding that the non-production of the expert witness for cross examination was serious enough to disprove the nature of the property as railway property since, in the impugned judgement itself from the other evidence on record the Ld. Magistrate had expressed his satisfaction that the properties were railway properties and recovered from the possession of the accused persons.

For the above reasons this Court is not persuaded enough to accept the submissions of Sri Maitra that the presumption which arose at the time of filing of the complaint ought to have been proved by adducing expert evidence. In the opinion of this Court the basis of the presumption arose in the complaint and continued with the search and seizure as well as in the charge of the prosecution read with the corroborative evidence of independent witnesses. Such presumption not being shaken at any stage during cross examination and satisfaction of it having been expressed by the Ld. Magistrate in his judgment, the second part of Section 3 of the RPUP Act ought to have been applied calling upon the accused persons to prove their lawful possession of such railway property.

Admittedly, nowhere from the materials on record does it appear that such onus of proof was discharged by the accused persons. Neither does it appear from the examination under Section 313 CrPC which could be considered to be relevant for corroborating the stand of the defence that such onus was discharged at any point of time. On the contrary, the accused admittedly fled from the scene at the time of search and seizure. In State of Rajasthan v. Sohan Lal and Others reported in , (2004) 5 SCC 573 the Hon''ble Apex Court held as follows:--

"3) This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal."

In Raj Narain Singh v. State of Uttar Pradesh and Ors. reported in , (2009) 10 SCC 362 the Hon''ble Apex Court held as follows:--

"31) The learned counsel appearing for the accused has strenuously argued and drawn our attention to the fact that the prosecution has not examined the other witnesses available on the spot. However, we are unable to accept the said contention as it is not necessary that all those persons who were present at the spot must be examined by the prosecution in order to prove the guilt of the accused. Section 134 of the Evidence Act, 1872 provides that no particular number of witnesses is required for proof of any fact. It is trite law that it is not the number of witnesses but it is the quality of evidence (emphasis supplied) which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused."

In State of UP v. Dr. Ravindra Prakash Mittal reported in , (1992) 3 SCC 300 the Hon''ble Apex Court was pleased to consider the issue of the need to interfere in an appeal qua the delay in disposal of the appeal as follows:--

"42) Moreover, when a judgement appealed against suffers from illegality or manifest error or perversity, warranting an interference at the hands of an appellate court in the interest of justice on substantial and compelling reasons, the mere delay in the disposal of the said appeal will never serve as a ground for non-interference and on the other hand, the appellate court if duty bound to set at naught the miscarriage of justice."

For the above reasons the impugned judgment and order of acquittal dated 30th November 1987 passed by the Ld. First Judicial Magistrate, Howrah (Sadar) in R.P.F. S.L. 116 TR 202/82 acquitting the accused under Section 246 CrPC is set aside."

N) In the considered view of this Court a similar approach requires to be adopted to the facts of this case. The Ld. Trial Court while embarking to appreciate the evidence omitted to do so in the perspective of the special provisions of the RPUP Act. This Court is also required to notice that the principles applying to discharge of the onus qua Section 3 of the RPUP Act (supra) apply with equal force to the provisions of Section 4 of the RPUP Act which read as follows:--

"4. Punishment for abetment, conspiracy or connivance at offences. - Whoever abets or conspires in the commission of an offence punishable under this Act, or any owner or occupier of land or building, or any agent of such owner or occupier incharge of the management of that land or building, who willfully connives at an offence against the provisions of this Act, shall be punishable with imprisonment for a term which may extend to five years, or with both."

O) Therefore, in the further opinion of this Court, the Railway Officers being the respondent Nos. 1, 2 and 3 who were admittedly present at the time of loading of the wagon in a restricted railway area, also failed to discharge their onus to disprove the excess loading of the subject wagon and, allowing its movement to the final departure yard. It is also trite law that the minor inconsistencies sought to be positioned by the Ld. Counsel for the defence are not fatal to the essential prosecution case since there appears a general consistency with regard to the substratum of the prosecution case which restrains this Court from discarding the same. Useful reference may be made in this regard to the following line of authorities:--

, 1991 Cr LJ 1318 (In Re: Thunincharam & Anr.);

, AIR 1999 SC 3916 in the matter of State of Himachal Pradesh v. Lekh Raj & Anr.; and

, AIR 1981 SC 697 in the matter of State of Punjab v. Wassan Singh & Ors.. Paragraphs 16 and 17 of In Re: State of Punjab v. Wassan Singh & Ors. may be usefully quoted:

"16. We have carefully considered the contentions canvassed on both sides. We are also not unmindful of the fact that we are dealing with an appeal against an order of acquittal in a double-murder case. Even so, we find that the reasons given by the High Court for holding that Resham Singh (P. W. 2) was not an eye-witness of these murders, are utterly unsustainable. The mere fact that Resham Singh (P. W. 2) had succeeded in escaping unhurt, or that there are discrepancies in the statements of Resham Singh (P. W. 2) and Bachan Singh (P. W. 3), as to whether they had gone to Amarkot with Mazara Singh the deceased on the very day of occurrence or a day earlier, was no ground for jumping to the conclusion that P. W. 2 was not in the company of the deceased or nearabout the scene of occurrence when Hazara Singh and Resham Singh were shot dead.

The occurrence took place on August 4, 1973, while Resham Singh (P. W. 2) and Bachan Singh (P. W. 3) were examined at the trial on December 27, 1974, that is to say, 17 months after the incident. Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witness, particularly when they are examined to depose to events which happened long before their examination. Such discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case. As rightly observed by the trial court, Resham Singh (P. W. 2) was never cross-examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night. The mere fact that P. W. 2 did not make any purchases at Amarkot could hardly be a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable."

P) This Court is also required to notice the argument of Sri Poddar that the auction purchaser, Govind Agarwal, soon after the judgment of acquittal impugned herein, applied before this Hon''ble Court by filing CRR 1868 of 2008 for return of the seized materials. Such conduct clearly establishes the nexus of the auction purchaser with the railway materials seized thereby attracting the provisions of Section 3 of the RPUP Act. This Court further notices that the ingredient of constructive transfer of the railway materials in favour of the purchaser in an auction is completed with the end of the auction and the completion of the RR. Such possession stands transferred to the person of the auction purchaser with the loading and sealing of the wagon leading to its placement for movement at the UP Departure Yard.

Q) With regard to the other points raised by Ld. Defence Counsel at the hearing, the first concerns the seal of the wagon. As already discussed above in this judgment, Sri Ganguly has attempted to demonstrate that the evidence with regard to the seal of the subject wagon was far from conclusive.

However, on carefully scanning the evidence on record, this Court notices that PW8 in his cross-examination has referred to the nature of the broken seal "as UDL (GC) and UDL (T) and it was made of Lak (Gala)". PW12 also refers to the seal card of the wagon and the RR books in connection with the wagon. PW13 testifies that the wagon was loaded and "verified" by the Deputy Store Keeper, Rashid Khan and Head Constable, Ram Janam Singh being the respondents-Railway Officers in this appeal.

PW3 in his cross-examination states that the seal was broken and the resealing was done in his presence. Thereafter the wagon was placed under guard. PW10 claims to have personal knowledge of the seal of the wagon. He further testifies to the fact that the seal was broken in his presence. PW8 also testifies that the formalities connected to the broken seal were completed by him.

R) Second, on the issue of sanction, although it is not argued exhaustively at the Bar, this Court is required to notice the fact that the RPUP Act is in the nature of special statute and S.14 thereof speaks in the following self-explanatory language:--

"14. Act to override other laws. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."

In the backdrop of the above discussion, the argument that the impugned judgment of acquittal should not be interfered with unless perverse does not persuade the mind of this Court. The Ld. Trial Court, in the considered view of this Court, failed to appreciate and apply the special provisions of the RPUP Act to the facts of this case and, shifted the onus of proof contrary to the legislative intent of the special statute.

In the view of this Court the complicity of the accused in the common offence is not a mere probable view but, the sustainable view.

Useful reference may be made in this regard to the observations of the Hon''ble Apex Court in K. Anbazhagan v. State of Karnataka reported in , 2015 (6) SCC 158. Such observations have been reiterated by the Hon''ble Apex Court in , 2015 (7) SCC 681 at Paragraph 14 in the matter of State of Madhya Pradesh v. Madanlal, which reads as follows:--

"14. Recently, in K. Anbazhagan v. State of Karnataka and Others, a three-Judge Bench addressing the manner of exercise of jurisdiction by the appellate court while deciding an appeal has ruled that:-- "The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, solely because there might not have been proper assistance by the counsel appearing for the parties. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasonings in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind - sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.""

For the above reasons the impugned judgment and order of acquittal dated 21st November, 2007 passed by the Ld. Additional Chief Judicial Magistrate, Durgapur in CR 116 of 2000 stands set aside.

The respondent No. 4, being the auction purchaser is found guilty of the charge under Section 3(a) of the RPUP Act.

The respondent No. 4 is directed to surrender within one month from this date to suffer the sentence of imprisonment under the RPUP Act of one year and a fine of Rs. 5,000/-, in default to suffer further simple imprisonment of one month treating the present offence to be a first offence.

The respondent Nos. 1, 2 and 3 and, on a parity of reasoning, the respondent No. 5, are found guilty of the charge under Section 4 of the RPUP Act and also directed to surrender within one month from this date to undergo the sentence of imprisonment under the RPUP Act of a period of one year and a fine of Rs. 5, 000/- each, in default to suffer further simple imprisonment of one month.

Registry is directed to communicate this order forthwith to the Ld. Additional Chief Judicial Magistrate, Durgapur for executing the sentence.

CRA 146 of 2008 stands accordingly allowed.

There will be, however, no order as to costs.

Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.