State of U.P. vs Suresh

T.P. Garg, J.—This appeal by State of U.P. is directed against the acquittal of Suresh, accused/Respondent, by Judicial Magistrate 1st Class, (N.E.R.) Bareilly u/s 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the Act), vide his judgment dated 26.2.1979.

The brief facts giving rise to the present appeal are as under:

On 1.12.1995 at about 4.25 a.m. A.S.I. Sri Ram Padarath Dubey P.W. 1, was on patrol duty on the northern side of the railway platform, Kathgodam along with three other Rakshaks of Railway Protection Force (in short referred to as R.P.F.). He found Suresh accused along with two others going towards the Railway Yard with a bag in his hand. The accused and his associates were followed and subsequently over-powered. The accused and one of his associates was arrested. From the search of the accused, a Dynamo belt was recovered from his possession. The monogram of "Bhartiya Railway Sampatti, 1975" was engraved on the said belt. A recovery memo Ex. Ka 1 was prepared. The accused could not explain the possession of the aforesaid railway property and hence he was challaned u/s 3 of the Act.

On being charged u/s 3 of the Act, the accused pleaded not guilty and claimed trial. The prosecution examined as many as five witnesses to prove its case. They are: Ram Padarath Dubey P.W. 1, Sri Ram P.W. 2, Daya Krishna Pathak P.W. 3, Harbansh Rai Nigam P.W. 4 and R.C. Passi P.W. 5. The statement of the accused was recorded u/s 313, Code of Criminal Procedure. The accused denied the allegations and stated that it was a false case against him. Further that the witnesses were deposing falsely on account of being of one and the same department. He did not opt to lead any evidence in defence although an opportunity was given to him for the purpose.

The learned trial Magistrate believing the defence version and disbelieving that of the prosecution held the accused not guilty and acquitted him vide his judgment dated 26.2.79 against which the present appeal has been preferred by the State.

I have heard the learned Counsel for the parties and have also gone through the record of the case.

It has been held by the trial court that a Dynamo belt bearing the trade mark Bhartia Railway Sampatti, 1975 N.R.M. Ltd. was recovered from the possession of the accused and which is proved beyond reasonable doubt. However, according to the trial Judge, the said Dynamo belt is not proved to be Railway property nor has it been proved that it was stolen from the possession of railway department at any time or that the accused was in possession of stolen goods in terms of Section 3 of the Act. To substantiate a charge under this Section, it is necessary that its ingredients should be proved beyond reasonable doubt. The Supreme Court has laid down its analysed ingredients in a more coherent manner in State of Maharashtra Vs. Vishwanath Tukaram Umale and Others, which are as under:

(i) The property in question should be Railway Property;

(ii) It should be reasonably suspected of having been stolen or unlawfully obtained; and

(iii) It should be found or proved that the accused was or had been In possession of that property.

Section 2(d) of the Act defines Railway Property as to include any goods, money or valuable security or animal, belonging to, or in the charge or possession of, a railway administration. The first ingredient of offence u/s 3 of the Act is that the property allegedly found in possession of the accused should be railway property as defined u/s 2(d) of the Act. There is not an iota of evidence on record to prove that the Dynamo belt which was alleged recovered from the possession of the accused was a Railway properly. The only evidence relied upon by the prosecution to prove the Dynamo belt to be Railway Property is that of R.C. Passi P.W. 5, so-called expert witness. He is an Electrical Foreman of the Railway Department. In his cross-examination, he has stated that the Dynamo belt Ex. Ka 4 examined by him was Railway property and valued Rs. 18. His report is Ex. Ka. 5. According to him the belt is not used by anybody else except the Railways; that there was a monogram of ''Bhartiya Railway Sampatti, 1975''; and that the said monogram is engraved by the manufacturer, who supplied the article to Railways. In his cross-examination, he has admitted that the Dynamo belts are not manufactured by the Railway; that it is purchased by the Railways under an agreement. In reply to another question, he could not say--whether any such product, if stolen from the manufacturer''s premises, would still be called Railway property. He admitted that a record is maintained with regard to the date on which the Dynamo belt is fitted in the coach and when it is stolen. Further that a report about the theft of Dynamo belt is always made by the concerned Railway Station authorities and this report is always signed by the R.P.F. officials. In the instant case, there is neither any such report alleged to have been made by the Railway Station authorities with regard to the theft of Dynamo belt nor any such record showing the date when the Dynamo belt was fitted or the date on which it was stolen nor any such report was produced. As per report of R.C. Passi, P.W. 5, he could not say if this Dynamo belt would still be Railway property even if it is stolen from the premises of the manufacturer. It is admitted that this belt was not manufactured by the Railway authorities, rather the Railway authorities purchase the Dynamo belts from private manufacturer. Under the circumstances, the trial court has rightly held that the Dynamo belt is not proved to be Railway property nor there is any evidence to prove that it was stolen or reasonably suspected of having been stolen or unlawfully obtained by any means. Thus, when two main ingredients of offence u/s 3 are completely missing simply because it was recovered from the possession of the accused would not make him liable nor would go to prove the case against him beyond reasonable doubt. The prosecution has not cared to bring in evidence any document like stock register or some such record of Railway department showing that the Dynamo belt in question after having obtained the same from private manufacturer was subsequently fitted in a Railway coach and from where it was stolen. In the absence of all this evidence, the trial court has rightly held that the offence u/s 3 of the Act is not proved against the accused, and there are no reasons for me to interfere with the aforesaid conclusion. The acquittal of the accused is thus held to be rightly recorded.

In view of the foregoing, there is no force in the present appeal which is dismissed and the Impugned judgment dated 26.2.1979 passed by Judicial Magistrate 1st Class (N.E.R.) Bareilly is maintained.