State by Railway Protection Force and Others vs Kishorekumar C. and Others

A.N. Venugopal Gowda, J.—1. The appellant had filed a complaint before the III Additional Civil Judge and CJM, Mysuru, alleging that the respondents and others committed an offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short ''the Act''). Cognizance of the offence was taken and summons was issued. The accused persons (except accused No. 5) appeared and charge for the offence under Section 3(a) of the Act was framed and when read over and explained, they pleaded not guilty and claimed for trial. The case against absconded accused No. 5 was split up.

In the trial, the complainant examined 10 witnesses and marked 66 documents and 2 material objects. Accused were examined under Section 313 Cr.P.C. and they denied all the incriminating circumstances put to them, as appearing from the statements made by the prosecution witnesses. No defence evidence was adduced. By a judgment dated 26.08.2004 passed in C.C. No. 3698/1993, the learned Magistrate found the accused Nos. 1 to 4 and 6 to 11 guilty and sentenced them to pay fine of Rs. 10,000/-. In default, to undergo S.I. for 6 months.

Feeling aggrieved, the accused filed criminal appeals in the Sessions Court at Mysuru. Considering the arguments addressed on behalf of the appellants, following points were raised for determination:

"1) Whether the prosecution has proved beyond reasonable doubts that on 26.8.1992 accused No. 1 was found in possession of 16 numbers of 60R rails valued Rs. 25,000/- belonging to Railway and further accused No. 4 was found in possession of 31 numbers of 60R rails, valued Rs. 60,000/- belonging to Railway on 27.8.1992 and those properties are the railway properties reasonably suspected of having been stolen or unlawfully obtained from the possession of railways without having any permit and therefore, they have committed the offence under section 3(a) of Railway Properties (Unlawful Possession) Act? and;

2) Further whether the prosecution has proved beyond reasonable doubts that accused No. 2, 3, 6 to 11 had assisted accused No. 1 and 4 either to commit theft of railway properties or unauthorisedly obtaining possession of railway properties and therefore, have committed offence punishable under section 3(a) of Railway Properties (Unlawful Possession) Act? and;

3) Whether the judgment and order of sentence passed by the Trial Court needs to be set aside or modified?"

On independent assessment of the evidence brought on record of the case by the complainant, point No. 1 was answered in the affirmative and point No. 2 was answered in the negative. Appeals filed by accused Nos. 1 and 4 were dismissed. However, the appeals filed by accused Nos. 2, 3 and 6 to 11 being found to be of merit were allowed by a judgment dated 20.08.2009. As a consequence, accused Nos. 2, 3 and 6 to 11 were acquitted from the offence alleged against them under Section 3(a) of the Act and their bail bonds were cancelled.

These appeals are by the complainant and is directed against the said judgment of acquittal passed in respect of the respondents.

Sri B. Visweswaraiah, learned HCGP, contended that the court below has erred in setting aside the judgment of conviction and the order of sentence passed by the Trial Court against the respondents. He submitted that the acquittal of the respondents being wholly erroneous and the impugned judgment to the said extent being not sound and proper, is liable to be set aside.

Learned advocates appearing for the respondents, on the other hand made submissions in support of the finding of acquittal recorded by the court below. Learned counsel submitted that there being independent assessment of the evidence by the learned Appellate Judge and the impugned judgment which is well considered being neither perverse nor illegal, no interference is called for. Learned counsel made submissions in support of the finding of acquittal recorded by the court below and sought dismissal of the appeals.

In the complaint it was alleged and in the evidence of P.W. 1 it was stated that accused No. 1 gave the information about the involvement of accused Nos. 2, 3 and 6 to 11 in committing the offence. The evidence produced by the complainant discloses that no property of the Railways was found in possession of accused Nos. 2, 3 and 6 to 11 and no property was seized from their possession. The Trial Court had convicted the accused Nos. 2, 3 and 6 to 11, solely on the basis of the alleged confession statement(s) of those accused persons made before P.W. 1. The learned Appellate Judge by finding that accused Nos. 2 to 4 have not admitted their guilt in the case and that they have retracted from the alleged statement given before P.W. 1 and no recovery having been made on the basis of the statements made by accused Nos. 2, 3 and 6 to 11, has held that the court cannot convict them, on the basis of the confession statement of accused No. 1 or the other accused persons. The reasons assigned to record the finding of acquittal in respect of the respondents herein, in para Nos. 23 and 24, has the evidentiary support and hence is not perverse.

The ingredients necessary in order to sustain a conviction under Section 3(a) of the Act are that the accused has been in possession of Railway property; that the property seized from the accused is Railway property; and that the seized property is reasonably suspected of having been stolen or unlawfully obtained. All the said ingredients being essential, have to be established before a person is convicted under Section 3 of the Act.

In the present case, there is no legal evidence in proof of the respondents being in possession of the Railway property nor was any property seized from their custody. It is on account of want of evidence which is admissible in law, the court below has passed the judgment of acquittal.

Having perused the record of the case, there being neither any misreading of evidence or omission to consider the material evidence by the learned Appellate Judge, there is no justification to interfere with the impugned judgment and restore the judgment and order passed by the Trial Court, which for valid reasons has been set aside.

In the result, the appeals being devoid of merit are dismissed.