State of U.P. vs Shafiullah

R. P Nigam, J.—This Criminal appeal has been preferred against the judgment and order dated 1731983 passed by Judicial Magistrate, 1st Class, Northern Railways Lucknow in criminal case No. 16 of 1979 State v. Shafiullah by which the respondent was acquitted of the offence punishable under Section 3 of the Railway Property (Unlawful Possession) Act.

The case of the prosecution as disclosed in the report (complaint) given by Ram Dev Singh, SubInspector on 17111978 in the Court of Judicial Magistrate Ist Class Northern Railway Lucknow is as follows:

"Rakshaks Haridwar Singh, Raghunandan Prasad Pandey and Khadim Rasool recovered one dynamo belt from the possession of the accusedrespondent Shafiullah on 22101978 at about 7.00 a.m. at Gate No. 4 running road Northern Railways Lucknow and the accused had no authority to keep the said dynamo belt and as the said dynamo bell which was the property of Railway was recovered from the possession of the accusedrespondent and, therefore, the accusedrespondent committed an offence punishable under Section 3 of the Railway Property (Unlawful Possession) Act and that is why the complaint was filed against the respondent after making necessary enquiries and collection of evidence."

The accused respondent was charged under Section 3 of Railway Property (Unlawful Possession) Act, by the Court below.

The prosecution in order to prove its case against the respondent examined Sri K.N. Sharma as P. W. 1, Haridwar Singh as P.W. 2, Khadim Rasul as P.W. 3, R.D. Singh as P.W. 4, Raghunandan Prasad Pandey as P.W. 5, A.K. Chhaterji as P.W. 6 and Sri Brij Nandan Singh as P.W. 7. The prosecution had relied upon recovery memo Ex. Ka4 and other papers.

The accused respondent denied the prosecution case and pleaded not guilty. He stated that the case had been filed against him on account of misunderstanding and he was falsely implicated on account of enmity and the witnesses deposed falsely against him. He further stated that Abrar Ahmad Foreman was forced to sit in R.P.F post and he intervened in the matter and that is why on account of enmity he was falsely implicated. The accused respondent did not lend any evidence in his defence.

The learned Court below after considering the evidence adduced in the case had held that the prosecution was not able to prove its case against the accused respondent beyond reasonable doubt and, therefore, the respondent was acquitted of the offence punishable under Section 3 of the Railway Property (Unlawful Possession) Act with which he was charged on 1731983 and against the. judgment and order of acquittal of respondent, the State of U.P. has preferred this appeal.

I have heard the learned Counsel for the appellant and the learned Counsel for respondent. The learned Counsel for appellant has contended before me that prosecution was able to prove its case against the respondent beyond reasonable doubt and the evidence of recovery of dynamo belt from the possession of the accused was truthful and therefore, the learned Court below was not justified in disbelieving the prosecution evidence and was not justified in recording the acquittal of the accused respondent. He has further contended that because the prosecution was able to prove its case against the accused respondent beyond reasonable doubt the evidence of recovery Of dynamo belt from the possession of the respondent was truthful, therefore, the learned Court below should have convicted and sentenced the accused respondent under Section 3 of the Railway Property (Unlawful Possession) Act and thus the judgment and order rendered by the Court below deserves to be set aside and the appeal should be allowed and the respondent should be convicted and sentenced under Section 3 of the Railway Property (Unlawful Possession) Act, 1966.

The learned Counsel for respondent on the other hand has contended that the prosecution was not able to prove its case against the respondent beyond reasonable doubt and the evidence of recovery of dynamo belt from the possession of the respondent was not truthful and therefore, the learned Court below was justified in disbelieving the prosecution evidence and was also justified in acquitting the respondent of the offence punishable under Section 3 of the Railway Property (Unlawful Possession) Act with which he was charged.

The evidence of recovery of dynamo belt from the possession of the respondent was disbelieved by the learned Court below and that is why the learned Court below recorded an order of acquittal of the respondent. It was held by the learned Court below that the prosecution was not able to prove its case against the respondent beyond reasonable doubt. I find that learned Court below was justified in disbelieving the evidence of recovery of dynamo belt from the possession of ''the respondent and was also justified in holding that the prosecution was not able to prove its case against the respondent beyond reasonable doubt and, therefore, the order of acquittal of the respondent recorded by the Court below is perfectly justified. The statement of Sri K.N. Sharma P.W. 1 establishes that dynamo belt which is said to have been recovered from the possession of the respondent belonged to Railway and dynamo belt was the property of the Railway. Haridwar Singh P. W2 Khadim Rasul P.W. 3 and Raghunandan Prasad Pandey P.W. 5 are the witnesses of recovery. R.D. Singh P.W 1 was S.I. Loco running shed Lucknow at the time of the incident and the investigation of the case was entrusted to him and he investigated the matter and he filed a complaint against the respondent after evidence and making necessary enquiry as slated above. It is said that confessional statement was given by the respondent before Sri R.D. Singh P.W 4, A.K. Chatterjee, P.W. 6 and K.K. Srivastava admitting his guilt and that statement was written by R.D. Singh P.W 4, Brij Nandan Singh P.W 7 was posted as head Rakshak running shed Alambagh Lucknow on 22101978 and on that day at about 8.30 a.m. Rakshaks Khadim Rasul, Haridwar Singh and K.K. Srivastava had brought the accused Shafiullah to the office and accused Shafiullah had a bag whose color was blue and in that bag dynamo belt was and Rakshak Haridwar Singh had given Ex. Ka1 to Brij Nandan Singh P.W 7 and the said dynamo belt was the property of Railway and that dynamo belt was sealed by Brij nandan Singh P.W, 7 before the witnesses and the prepared memo Ex. Ka5 which was Daknla Mai. Thus Brij Nandan Singh P.W. 7 is a formal witness.

The statement of Haridwar Singh P.W 2, Khadim Rasul P.W. 3 and Raghunanandan Prasad P.W 5 shows that the dynamo belt which was the property of Railways was recovered from the possession of the respondent on 22101978 at 7.00 a.m. at gate No. 1 running road Northern Railway Lucknow. The statements of these witnesses were contradictory regarding writing of the recovery memo and sealing of the goods which was said to have been recovered from the possession of the respondent and, therefore, the learned Court below disbelieved the statements of the said witnesses regarding recovery of dynamo belt from the possession of the respondent and I find that the learned Court below had correctly disbelieved the statements of the said witnesses regarding recovery of dynamo belt from the possession of the respondent Ex. Ka1 is the recovery memo and which reveals that as there was no article for sealing the goods at the spot, therefore, in Ex. Ka4 it was mentioned that the goods would be taken to the office by keeping the goods in bag and it means that the dynamo belt was not sealed at the spot and the recovery memo was prepared at the spot. The statement of the crossexamination of Haridwar Singh P.W 2 shows that recovery memo was prepared at the post and it was not prepared on the spot. His statement further reveals that he did not obtain the signature of any one on the recovery memo while the recovery memo Ex. Ka4 shows that signatures of the accused and the witnesses were obtained on the recovery memo. The recovery memo Ex. Ka4 shows that it was prepared on the spot and it was prepared by Haridwar Singh P.W. 2 and thus the statement given by Haridwar Singh is contrary to the documentary evidence adduced in the case. Ex. Ka4 further reveals that dynamo belt was not scaled on the spot while the statement of crossexamination of Haridwar Singh P.W. 2 shows that dynamo belt was sealed on the spot. Thus, I find that Haridwar Singh P.W. 2 has given his statement contrary to the documentary evidence adduced in the case and, therefore, he is not a truthful witness and the learned Court below was justified in disbelieving his evidence. The statement of crossexamination of Khadim Rasul P.W 3 shows that Likhapari was done in the office of R.P.E this statement of Khadim Rasul P.W 3 is against the content of the recovery memo Ex. Ka4 and this shows that Khadim Rasul P.W 3 is not a truthful witness.

The statement of Raghunandan Prasad Pandey P.W 5 reveals that goods was sealed in the office and the goods was not sealed at the place of occurrence and this statement of Raghunandan Prasad Pandey P.W. 5 is contradictory with the statement of Haridwar Singh P.W 2 and this shows that neither Haridwar Singh P.W. 2 is truthful witness nor Raghunandan Prasad Pandey P.W 5 is truthful witness. The statement of Raghunandan Prasad Pandey P.W 5, Khadim Rasul P.W. 3 and Haridwar Singh P.W. 2 are contradictory and therefore, these witnesses are not truthful witnesses and their statements regarding recovery of dynamo belt from the possession of the respondent on the date and time and place of the incident cannot be believed. The learned Court below was justified in disbelieving the statements of the said witnesses and was also justified in disbelieving the evidence of recovery of dynamo belt from the possession of the respondent.

It is said that respondent made confession before R.D. Singh P.W. 4, A.K. Chatterji P.W 6 and K.K. Srivastava admitting his guilt. R.D. Singh P.W. 4 has given his statement to the said effect. The confessional statement Ex. Ka7 of the respondent was written by R.D. Singh P.W. 4 on his dictation. A.K. Chatterji P.W. 6 did not support the prosecution case and hence he was declared hostile by the prosecution and the statement of A.K. Chatterji P.W. 6 shows that the respondent did not dictate the statement and R.D. Singh P.W. 4 wrote the statement of the accused himself. There was absolutely no occasion for the respondent to make the confession before R.D. Singh P.W. 4. A.K. Chatterji P.W. 6 who was present had stated that the respondent did not dictate the statement to R.D. Singh P.W. 4 and R.D. Singh P.W. 4 had himself written the statement and this suggests that R.D. Singh P.W. 4 manufactured the evidence of confession against the respondent K.K. Srivastava who was said to be the witness of confession of the respondent was not examined by the prosecution as K.K. Srivastava had died. The uncorroborated testimony, of R.D. Singh P.W. 4 regarding confession made by the accused admitted his guilt cannot believed and R.D. Singh P.W 4 also does not appear to be a truthful witness. Brij Nandan Singh, P.W. 7 who is a formal witness and who prepared memo Ex. Ka5 had also stated that accused had admitted that a mistake had been committed by him. There was absolutely no occasion for the accused to admit his guilt before Brij Nandan Singh P.W. 7 and he does not appear to be a truthful witness. The prosecution evidence is unreliable and the prosecution was not able to prove its case against the respondent beyond reasonable doubt and, therefore, the learned Court below was justified in disbelieving the evidence adduced by the prosecution and was justified in acquitting the accused of the offence with which he was charged and, therefore, this criminal appeal preferred by the State deserves to be dismissed.

This Criminal appeal is dismissed. The respondent is on bail. His bail bonds are cancelled and sureties are discharged.