State of Orissa vs Pohili Tanty

P.K. Mohanty, J.—This Government Appeal is directed against the order of acquittal passed by the learned Addl. Chief Judicial Magistrate-cum-Judicial Magistrate First Class, Rourkela on 16.4.1988 in a case instituted for an offence punishable u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966.

Fact of the case in brief is that while the R.P.F. staff of Rourkela R.P.F. Post, were performing patrol duty inside the Rourkela Railway Station yard on 28.9.1983 at about 4.15 a.m. saw the accused moving at the sick line of the railway yard. He was found in possession of a Clavis, which is used for maintenance of the railways. The accused was arrested and he gave recovery of some materials. The shop-cum-godowns of four others were raided and some other railway properties were recovered. All the articles were examined by the expert who found that those were railway properties. The case against the accused-Respondent and four others was registered but the other four cases were split up due to non-appearance of the accused persons. The accused denied the charges and has not chose to examine any defence witness. Learned Magistrate framed two questions for determination: (i) if the seized article was railway property and (ii) if the accused was in possession of the same without any authority.

The learned Magistrate, on consideration of the evidence of official witnesses P.Ws. 1, 2 and 4, who were eye-witnesses to the occurrence and taking into consideration, the admission of the witnesses that no attempt was made to call any independent witnesses to the R.P.F. Post, has entertained a doubt on their testimony and, as such, the seizure of M.O.I. from the possession of the accused has been disbelieved. I have perused the evidence of the prosecution witnesses and find no reason to differ from the view taken by the learned Magistrate.

In this case, occurrence took place 23 years back i.e., on 28.9.1983 and the order of acquittal was passed on 16.4.1988, which was 18 years back and as such, I feel it will otherwise not be in the interest of justice to reappreciate the evidence to take a different view and convict the accused person after lapse of such a long time.

In such view of the matter, the Government Appeal fails and is dismissed accordingly.