State vs K. Subramaniam

T.N. Singaravelu, J.—This appeal is filed by the State represented by the Public Prosecutor against the order acquitting the respondent who

was charged under S. 3(a) of the Railway Property (Unlawful Possession) Act.

The Prosecutor''s case is that, on 17th December, 1978 at about 5.10 a.m. at Korukkupet Goods shed, the respondent/accused was found to

be in possession of two A.C. bearing plates belonging to the Railways and the same were recovered from him. When questioned, the accused

could not account for the same, but gave a confessional statement under Ex. P2 admitting the offence. Hence, the charge.

In the Trial Court, the accused denied the offence and no witness was examined on his side. The prosecution examined three witnesses and

produced Ex. P1 to P3. The gunny bag and the two A.C. bearing blades were marked as M.O. 1 and M.O. 2 series respectively. The learned

Magistrate found that the prosecution has not proved beyond doubt that the Articles seized belonged to the Railways and, therefore, acquitted the

respondent/accused. Hence, the appeal by the State.

The respondent is represented by Mr. T. Munirathina Naidu, Advocate nominated by the High Court Legal Aid Center. I have heard both

sides. The learned Public Prosecutor argued that the order of the Court below is manifestly illegal and that there is gross misappreciation of

evidence. The learned Public Prosecutor took me through the evidence in this case.

P.W. 1 Asst. Sub-Inspector, belonging to the Railway Protection Force, stated about the seizure of M.Os. 1 and 2 from the accused. He also

stated that M.O. 2 series belonged to the Railways and that they bear Railway markings. He also deposed about the confessional statement given

by the accused under Ex. P2. Nothing tangible was elicited to discredit his testimony. P.W. 2, Permanent Way Inspector, was present at the time

of seizure and he has attested the mahazar. He stated that M.O. 2 series contained the Railway markings and they were serviceable. He added that

those materials were specially intended for use of the Railways, that they were not available in the open market, that they were not auctioned by

the Railway Department, that they were used to attach the rail with the sleeper, that the Railway Mark ''R.D.S.O.'' means Railway Design

Structural Organization, that these bearings were manufactured by a private company known as T.L.F. on orders placed by the Railways and that

these bearings cannot be put to any other use or for industrial purpose, P.W. 3, another signatory to the mahazar, corroborated the evidence of the

other two witnesses. In spite of the evidence of these three witnesses, the Trial Court has held that the prosecution has not proved that the two

A.C. bearings belong to the Railways or that they are Railways property within the meaning of the abovesaid Act. The conclusion of the trial

Magistrate is manifestly improper. P.W. 2 is an Expert and he has certified that M.O. 2 series are Railway Properties. It is also in evidence that

they can be used only by the Railway Department and not for any other purpose. Of course, there is no ''I.R.'' (Indian Railway) mark on the

bearings, but that is immaterial. All parts and accessories are not invariably manufactured by the Railway Department and they are purchased from,

companies by placing orders with specifications. For instance, fans, cushions and any number of such articles are manufactured by companies, on

orders placed by the Railway Department. Just because there is no ''I.R.'' mark on those small items like bearings, it does not follow that they are

not ''Railway property''. The learned Public Prosecutor argued that when once it is proved that the bearings belonged to the Railways, the burden

to prove how the accused came into possession of the same was his. In other words, when once the initial burden to prove ownership of the

Railways to the bearings in question is discharged by the prosecution the burden shifts on to the accused to show how he acquired possession of

the same. The learned Magistrate has completely lost sight of this legal aspect. It is nobody''s case that such bearings are available in open market

or that the accused had purchased it from elsewhere. The prosecution evidence is that these bearings are never condemned or auctioned, since

they are sent back to workshop for re-molding or re-conditioning. Therefore the accused miserably failed to account for the possession of these

bearings. The accused has himself given a confessional statement before the Railway authorities that he is a regular thief pilfering railway articles

from the yard and making a living out of the same. It is not the contention of the accused in his S. 313, Cri.P.C., statement that his statement was

extracted under coercion or undue influence. Therefore, this is a clear case where the accused should have been convicted on the evidence on

record. In other words, the acquittal is totally unsustainable and requires interference. The accused is, accordingly, convicted under S. 3(a) of the

said Act.

With reference to the question of sentence, the minimum sentence under the AC is one year with fine. It is noticed that the accused is a young

man without any ostensible means of livelihood. Therefore, there is no point in imposing fine. Further the offence took place in December, 1978

and six years have now elapsed. I am, therefore, of opinion that a sentence of four months rigorous imprisonment would meet the ends of justice.

In the result, the appeal is allowed. The accused/respondent is convicted under S. 3(a) of the said Act and sentenced to suffer four months

rigorous imprisonment.

Appeal allowed.