State by the Public prosecutor vs C.P. Jeevarathinam

K.N. Mudaliyar, J.—This is an appeal filed by the State against the order of the court of the Seventh Presidency Magistrate, Egmore,

acquitting one C.P. Jeevarathinam of the offence u/s 3(a) of the Railway Property (Unlawful possession) Act of 1966. P.W. 1 is the Detective

Inspector. On 21st August 1969 at about 4-45 p.m., he along with the Sub Inspector of Railway Protection force conducted a physical check of

the accused while he was going home after the day''s work through the guard room counter. He checked the accused in the presence of R.

Kalyanasundaram, another electrical chargeman (not called as a witness). He found that the accused had concealed two paper bundles, one in

rose colour tied with black thread in the hip pocket of his pants and the other red in colour tied with black thread in the side pocket of his pants

which he was wearing then. In the presence of P.W. 2 and Kalyanasundaram he took out the bundles from out of the pants. On opening the

bundles, he found two rolls of copper enamelled wire, one in brown colour and the other black in colour. All these material objects have been duly

marked in the case.

P.W. 2, Raman Warrier is a maistry in the carriage works, Perambur He stated that as he was going through the guard room counter from the

workshop after the day''s work, P.W. 1 called him and took him to the guard room. The accused and Kalayanasundaram were standing there. The

Inspector, P. W. 1 searched the accused in their presence. Two paper bundles were taken from the hip pocket and the left side pocket of the

pants of the accused and when opened in their presence, they contained M. Os. 1 to 8. They were seized under Ex. P. 1 attested by P. W. 2, and

Kalyanasundaram.

P.W. 3, Vasudeva Rao, Assistant Electrical Foreman, examined M. Os. 3, 4, 7 and 8 and certified that they were copper wires used in railways

and that they were in the carriage workshop. Ex. P. 3 is his certificate.

P.W. 4 was present when P.W. 1 conducted a search of the person of the accused. The accused was handed over by P.W. 1 to P.W. 4. P.W.

4 examined the accused and he recorded the statement Ex. P. 4, wherein the accused had admitted that he took the properties from the

workshop.

The learned trial Magistrate dealt with the discrepant versions of P.W. 1 and P.W. 4 in contradistinction with the version of P.W. 2 in respect of

the place and the manner of the seizure. He drew an adverse inference against the prosecution from the non-production of the pants with the hip

pocket. The learned trial Magistrate also considered the great improbability in that the accused, who was admittedly entrusted with nearly two

lakhs worth of railway goods for discharging his duties, would not certainly have committed a crime of this kind. The learned Magistrate also made

a spot inspection and came to the conclusion that, inasmuch as the accused had to traverse through a open maidan before he could come to the

guard room, there was every probability of the accused throwing away the contraband from his possession at the sight of P.W.1.

The essence of the defence case is that these material objects were not seized from the person of the accused as he was not in possession of the

same and that, at the instance of Kalyanasundaram, the case has been foisted and the material objects found on the table of P.W. 1 have been

planted against the accused. It may be of interest to notice that, in the event of the accused being found guilty and dismissed from his job

eventually, Kalyanasundaram (not called as a witness) who attested Ex. P. 2, the mahazar for recovery, would be the person to get into the office

of the accused. It is the further case of the accused that at the instance and instigation of Kalyanasundaram the entire case has been falsely cooked

up against him.

This is a case where the entire matter can be disposed of on a consideration of the material pieces of evidence of P.W. 3. S. 3 of the Railway

Property (Unlawful Possession) Act, 1966 states:

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 shall not be less than one year and such fine shall not be less than one thousand rupees;

(b) 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 prosecution has got to prove (1) that the accused has been in possession of the railway property, (2) that the property seized from the

accused is railway property and (3) that the said railway property is reasonably suspected of having been stolen or unlawfully obtained. The three

essential ingredients constitute the gist of the offence against an accused. We have got to consider whether the properties themselves have been

proved in this case as railway properties within the meaning of S. 3 of the said Act. P.W. 3 himself stated that he examined M. Os. 3, 4, 7 and 8

(copper wires) and certified that they were used in railways and that they were in the carriage workshop. He proved the certificate Ex. P. 3. But in

cross-examination P.W. 3 stated that M. Os, 3, 4, 7 and 8 were used wires and they were scrap wires. He also added:

I cannot assert that M. Os. 3 and 4 and 7 and 8 are railway properties, but I can only say that they are similar to the wires which are used in

railways.

This answer admits of a very reasonable doubt about M. Os. 3, 4, 7 and 8 being railway properties within the meaning of S. 3 of the said Act.

On this ground alone, the accused is entitled to an acquittal. It is unnecessary for me to consider whether the accused was really in possession of

the said material objects and whether the prosecution has really proved that these properties are ""reasonably suspected of having been stolen or

unlawfully obtained"".

I express my total agreement with the findings of the learned Trial Magistrate in regard to the unreliability of the testimony of P. Ws. 1, 2 and 4.

The order of acquittal made by the learned trial Magistrate is correct and proper. I see no ground to interfere with the order. The criminal

appeal is dismissed.