State of U.P. vs Jai Shree

J.C. Mishra, J.—This appeal has been filed against the judgment and order dated 1111980 passed by J.M. 1st Class, Varanasi acquitting the accused Jai Shree of the charge under Section 3 R.P.U.P. Act feeling aggrieved by the acquittal of the accused.

I have heard the learned Counsel for the appellant and learned Counsel for the accused.

The prosecution case is that the accused was apprehended by the SubInspector RPF while he was found in suspicious circumstances on the Railway track. On search he was found to contain dynamo belt measuring 81/2 cubit in length and 6 anguls in breadth. The SubInspector prepared a recovery memo on the basis of which the case was registered. The dynamo belt was sent for expert opinion. The Head Train Examiner (Electrical) found that the dynamo belt was in two pieces joined with 4'' fastener. The length of one piece was 2.5 meters whereas the length of small piece was 1.25 metres. On big piece words ''CRET'' was written by paint.

The Head Train Examiner (Electrical) reported that the said dynamo belt was railway property and was not available in open market nor it is auctioned by the railways. He estimated its approximate cost at Rs. 49.65. The learned Magistrate held that the prosecution could not prove that the dynamo belt which was sent for expert opinion was the same belt which was recovered from the possession of the accused. The main reasons for discarding the prosecution evidence was that it has not produced the original sample of seal.

It has been stated in the grounds of appeal that the description of the dynamo belt recovered tallied with the description given in the recovery memo and therefore, the view taken by the Magistrate is erroneous.

The learned Counsel for the respondents pointed out that the description in the recovery memo and the report of the Head Train Examiner (Electrical) do not tally. He pointed out that though the words ''CRET'' were found appended in the report but there is no such reference in the recovery memo. The SubInspector could not read the words written on the belt.

The learned Counsel for the respondents contended that as Sub Inspector had measured the belt by using his hands it cannot be said that the length and breadth of the dynamo belt given in the report and recovery memo tallied.

In the recovery memo the ''month'' was not noticed though in the electrician''s report July was found written. In the electrician''s report the number of belt was given as 26. The No. was not written in the recovery memo. In view of this fact it cannot be said that the description of the dynamo belt given in the electrician report and recovery memo taxied. The inability of the prosecution to produce the sample seal of original seal, therefore, assumes importance. The view" taken by the Magistrate cannot be said to be erroneous. The learned Magistrate has also pointed out the other discrepancy in the ocular evidence. Without reproducing the same I find that it is not a fit case to interfere with the acquittal; moreover, when the delay in lodging the report has not been explained.

The appeal is dismissed. The accused may be released if not wanted in other case.