State, Sub Inspector Railway Protection Force vs Paramasivam

P.R. Shivakumar, J.—The State has preferred this Appeal against the Judgment of the learned Principal Sessions Judge, Vellore dated

29.06.2001 made in C.A. No. 44 of 2000, whereby the conviction recorded and sentence of imprisonment and fine imposed by the learned

Judicial Magistrate,, Arakkonam in C.C. No. 236 of 1992 were set aside and the respondent herein i.e. the accused in the above said calendar

case has been acquitted of the charge for an offence punishable u/s 3(a) of the Railway property (Unlawful possession) Act, 1966 (29 of 1966).

The appeal has been preferred after getting the leave of this Court.

2.The case of the prosecution, in brief, is as follows:

PW1-Gangadharan, the then Sub-Inspector of Police, Railway Protection Force, Arakkonam found one Durai with suspicious movements

carrying a gunny bag near Arakonnam A/c shed at about 4.15 a.m. on 04.01.1989. Therefore PW1 intercepted the said Durai on suspicion that he

might be carrying Railway properties in the gunny bag. On a search made in the gunny bag, PW1, found stolen properties belonging to the

Railways in the said gunny bag carried by the said Durai. Thereafter, the confession statement of the said Durai was recorded in the presence of

PW6 - Manoharan and one Rajendran. The properties were also recovered from him under seizure Magazar. As the said Durai, in his confession

statement, revealed the fact that he used to steal the railway properties and sell them to waste iron dealers and said that if the police would

accompany him he could identify the shop and the shop owner who used to get such stolen railway properties from him. The above said Sub-

Inspector of Police, Railway Protection Force, Arakkonam (PW1) searched the premises bearing Door No. 95, Gandhi Road, Palani Pettai,

Arakkonam which was identified by the above said Durai to be the shop in which he used to sell the stolen railway properties. The said Durai also

identified the respondent to be the person to whom he used to sell stolen railway properties. The respondent/ Accused was residing in the house

available in the said Door number as a tenant under one Joseph Raj, the father of PW4- Aroghya Das. In the space that was available on the back

side of the building, he had put up a thatched shed and was using it as a shop for his business of purchasing and storing waste iron. The said shop

was searched in the presence of PW6 - Mahoharan and one Rajendran. In the search thus conducted by PW1, the following railway properties

were recovered:

1) 2 Nos of CST plates marked as M.O.3 series;

2) 8 nos of. AC bearing chairs marked as M.O. 4 series;

3) 5 Nos of AC Chairs were marked as M.O.5 series;

4) 16 Nos of screws marked as M.O.6 series;

5) 7 Nos of steel case marked as M.O.7 series;

6) One fish plate marked as M.O.8 series; and

7) 6 break boxes marked as M.O.9 series.

The above said properties were recovered in the presence of the said witnesses under search list marked as EX.P4. The said goods were

identified to be railway properties and the respondent/accused was not able to account for the possession of the same. The respondent/accused

also gave a confession statement in the presence of the above said witnesses and the same was recorded by P.W.1. Ex.P5 is the said confession

statement of the respondent recorded by P.W.1. The above said Durai and the respondent(Paramasivam) were arrested and produced before the

court and thereupon, they were remanded to judicial custody. PW1 continued his enquiry, examined the witnesses, got the reports of P.W.2- Mr.

Shanmugam, the Chief Train Inspector and P.W.3 - Mr. Chandrasekar, the Permanent Railway Inspector to the effect that the articles recovered

from Durai and Paramasivam (the respondent herein) were railway properties. P.W.1 also recorded the statements of witnesses and obtained

certificates from the Commissioner of Arakkonam Municipality regarding the ownership of the premises at Door No. 95, Gandhi Road and to the

effect that no license had been granted either to the respondent or to any body else to use the said premises for commercial purpose. P.W.1, after

completing the enquiry, was satisfied that the properties recovered from Durai and Paramasivam (respondent herein/accused) were railway

properties either stolen or acquired unauthorisedly by the said persons and hence submitted a complaint on the file of the trial court against the

above said Durai and Paramasivam(respondent/Accused) alleging commission of an offence punishable u/s 3(a) of the Railway Property (Unlawful

Possession) Act, 1966.

The said complaint was taken on file as C.C. No. 52/1989 on the file of the learned Judicial Magistrate, Arakonam. The above said Durai,

arrayed as the first accused, and the Respondent herein, arrayed as the second accused, were served with copies of the complaint and the

documents relied on by the complainant and they were asked to plead either guilty or not guilty. Durai, who was arrayed as Accused No. 1 in the

said C.C. pleaded guilty and based on his plea of guilty he was convicted and sentenced to pay a fine of Rs. 5,000/-. The respondent herein

pleaded not guilty, Therefore, the case as against Paramasivam (the respondent herein) was split up and assigned a new number namely, C.C. No.

236 of 1992. P.W.1 to 6 were examined, Ex.P1 to P12 were marked and MO 1 to 9 were produced on the side of the Appellant/Complainant.

After the completion of recording of the evidence adduced on the side of the Appellant, the respondent/accused was questioned u/s 313(1)(b) of

Criminal Procedure Code regarding the incriminating materials found in the evidence adduced on the side of the Complainant (prosecution). He

denied them as false and reiterated his stand that he was innocent. No witness was examined, no document was marked and no material object

was produced on the side of the respondent/accused.

The learned Judicial Magistrate, No. 1, Arakkonam heard the arguments advanced on either side, considered the evidence in the light of the

arguments advanced on either side, and upon such consideration came to the conclusion that the charge against the accused for an offence

punishable u/s 3(a) of the Railway property (Unlawful Possession) Act, 1966 (29 of 1966) had been proved beyond reasonable doubt. In line with

the said finding, the learned Judicial Magistrate found him guilty and recorded a conviction. After ascertaining respondent''s/accused''s views

regarding the punishment to be imposed, the learned Judicial Magistrate sentenced him to undergo imprisonment till rising of the court and to pay a

fine of Rs. 5,000/- by a Judgment dated 22.05.2000. The learned Judicial Magistrate also directed that in case of default of payment of the fine,

the respondent/accused should undergo rigorous imprisonment for a period of six months.

Aggrieved by and challenging the judgment of conviction, the respondent herein preferred an appeal before the learned Principal Sessions

Judge, Vellore in C.A. No. 44 /2000. The learned principall Sessions Judge, Vellore after hearing both sides, set aside the conviction and sentence

passed by the learned Judicial Magistrate, Arakkonam and acquitted the Respondent/Accused by judgment dated 29.06.2001. A further direction

was also issued to refund the fine amount collected from the Respondent/accused. Aggrieved by the same, the Appellant/Complainant preferred

the present Appeal challenging the correctness and legality of the judgment of the Lower Appellate Court on special leave u/s 378(4) Criminal

Procedure Code. This Court granted leave to prefer the Appeal against the judgment of learned Principal Sessions Judge, Vellore dated

29.06.2001 made in C.A. No. 44 of 2000 by an order dated 18.01.2002 made in Crl.O.P. No. 365 of 2002. Thus, the present Criminal Appeal

No. 15 of 2002 preferred on various grounds set out in the appeal petition, came to be taken on file.

The point that arises for consideration in this case is as follows:

Whether the Judgment of the Lower Appellate Court, reversing and setting aside the conviction and sentence passed by the learned Judicial

Magistrate, Arakonam, is defective and liable to be interfered with by this Court in exercise of its Appellate powers?

The submissions made by Mr. R. Muniapparaj, learned Government Advocate (Crl. side) on behalf of the Appellant and Mr. G. Pugazhanthi,

learned Counsel appearing on behalf of the Respondent were heard. The materials available on record, including judgments of the courts below

and appeal petition, were also perused.

Advancing arguments on behalf of the appellant/complainant Mr. R. Muniapparaj, learned Government Advocate (Crl. side) submitted that the

Lower Appellate Court committed a grave error in interfering with and reversing the well considered judgment of the trial court; that the Lower

Appellate Court failed to properly consider the evidence adduced on the side of the appellant/complainant and that the same led to the erroneous

conclusion that Appellant/complainant had failed to prove the charge against the respondent beyond reasonable doubt. The Learned Government

Advocate (Crl.side) contended further that the Lower Appellate Court simply pointed out one or two discrepancies found in the evidence adduced

on the side of the appellant/complainant which were not at all discrepancies; that the Lower Appellate Court failed to consider the fact that the

statements of the witnesses as well as confession statements recorded by the official of the Railway Protection Force were valid and admissible

pieces of evidence; that there were more than sufficient evidence to prove the guilt of the respondent/accused, but the Lower Appellate Court had

set aside the conviction and sentence for insufficient and insignificant reasons; that the Judgment of the Lower Appellate Court, as a whole, could

be construed to be a crippled one as major part of evidence in this case had not been taken into consideration and that viewed from any angle, the

judgment of the Lower Appellate Court could not be sustained.

Per contra Mr. G.Pugazhanthi, learned Counsel appearing for the respondent/accused contended that the Lower Appellate Judge, upon

reconsideration of evidence came to the correct conclusion that the charge made against the respondent/accused was not proved beyond

reasonable doubt; that the prosecution case was mainly based on the confession statement of Durai who was not prosecuted along with

respondent/accused; that the reliance made by learned Judicial Magistrate on the confession statement of the said Durai was not proper; that if the

evidence adduced on the side of the Appellant/Complainant minus the confession statement of Durai would be taken into consideration, the only

possible conclusion was that the charge made against the accused was not proved beyond reasonable doubt; that the Lower Appellate Judge

came to the correct conclusion and that there was no defect or infirmity in the judgment of the Lower Appellate Court.

This Court gave its anxious considerations to the rival contentions put forward on either side. The entire records were also perused.

The Sub Inspector of Police, Railway Protection Force, Arakkonam, who was the complainant before the Judicial Magistrate, No. 1,

Arakkonam is the appellant herein. He had preferred the complaint against one Durai and the respondent herein stating that both were found to

have in their possession railway properties on 04.01.1989, around 4.15 a.m. and 7.30 a.m respectively which they could not account for and that

hence they had committed the offence punishable u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (Act 29 of 1966). Durai

admitted the offence and was convicted on the plea of guilty. Respondent alone pleaded not guilty. After trial he was found guilty and convicted for

the said offence by the trial court, with imprisonment till rising of the court and a fine of Rs. 5000/- along with a default sentence of six months

rigorous imprisonment in case of non payment of fine. On Appeal to the Lower Appellate Court, the conviction and sentence were set aside and

the respondent herein was acquitted. The Correctness and legality of the judgment of the Lower Appellate Court is challenged in this appeal.

Section 3 of the Railway Property (Unlawful Possession) Act, 1966 reads as follows:

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 be and adequate reasons to be mentioned in the judgment of the Court, such

imprisonment extend to five years, or with fine, or with both and in the absence of special 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 or 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.

From the above said provision of law, it is obvious that whenever any railway property is found or proved to be in possession of any person and

such person is suspected of having stolen or having unlawfully obtained possession of the said property, the burden of proving his innocence, in

other words the burden of proving that he came to possess the railway properties lawfully shall be on such person. In this case, it is the case of the

prosecution that Durai (Original accused No. 1) was found carrying a gunny bag on 04.01.1989 around 4.15 a.m. near Arakkonam A/c Shed and

on a search made by P.W.1, the Sub Inspector of Police, Railway Protection Force, Arakkonam it was found that the gunny bag marked as M.O.

1 contained two A.C. barring plates marked as M.O.2 series. The said material objects were recovered from him in the presence of PW6 -

Manoharan and one Rajendran under Exhibit P1. The said Durai,(original accused No. 1) has also given a confession statement which was

recorded by P.W.1 in the presence of P.W.6 and Rajendran. The said confession statement has been produced and marked on the side of

appellant/complainant as Ex.P2. Recording of Ex.P2 - confession statement was not disputed by the said Durai (original accused No. 1). On the

other hand, admitting the complainant''s case, he pleaded guilty and based on that plea, he was convicted and punished. Even then, in order to

prove the said facts, the appellant/complainant has examined P.W.1, P.W.5 and P.W.6. P.W.5 and P.W.6 have been projected to be eye

witnesses besides P.W.1 who conducted the raid, recovered the articles and recorded the confession statement of Durai. Ofcourse it is true that as

per the case of the appellant/complainant, P.W.1, the Sub Inspector of Police, Railway Protection Force spotted Durai (originally arrayed as A1)

carrying a gunny bag containing M.O.2 series, near the A/C Shed at about 4.15 a.m. on 04.01.1989 and intercepted him. However, the statement

marked as Ex.P2 was recorded and recovery of M.O.2 series was made at about 6.00 a.m on the said date in the presence of P.W.6 and one

Rajendran. Ex.P1, Mahazar was allegedly prepared at 4.15 a.m on 04.01.1989 in the presence of PW5 - Subramani and other official witnesses

after the M.O.1 and 2 were recovered from Durai. Of course, at the out set there seems to be a slight difference between the evidence of P.W.6

and the statement of the above said Rajendran marked as Ex.P6 regarding the time at which Durai''s confession statement was recorded. But a

close scrutiny will show that there is no such difference. P.W.6, an illiterate Cooli has stated that he was asked by Railway Protection Force

people to be a witness for recording the statement of Durai when he went near the A/C Loco Shed in the early morning on 04.01.1989. According

to his version, he stared at 4.00. a.m. from his residence. What was the time taken by him for reaching AC Loco shed was not elicited from him.

His statement has been marked as Ex.P7 and the statement of Rajendran has been marked as Ex.P6. In their statements they have stated that

about 6.00 a.m., on 04.01.1989 whey witnessed the Railway Protection Force people recording the confession statement of Durai. Though P.W.6

stated that he started from his residence at 4.00 a.m, he has also stated that it was dawn when the confession statement of Durai (Ex.P2) was

recorded and attested by him. Therefore, this Court has to accept the submission made by the Learned Government Advocate that in fact there

was no discrepancy or contradiction between the evidence of PW6 and the statements of P.W.6 and Rajendran regarding the time at which the

confession statement of Durai was recorded.

Clear evidence has been adduced though P.W.1, P.W.5 and P.W.6 to the effect that after the confession statement of Durai was recorded,

they went along with the Railway Protection Force people to the second place of occurrence at No. 95, Gandhi Road, Palanipettai, Arakkonam,

where the above said Durai identified the scrap iron shop run by the respondent herein and the respondent herein to be the owner of the said shop.

Clear evidence has also been adduced through them to the effect that the said Durai informed the Railway Protection Force people that he used to

sell the railway properties to the respondent herein whereupon a search was made by P.W.1 in the presence of P.W.6 Mahoharan and Rajendran

as a result of which, Ex.P4- search list was prepared and M.Os. 3 to 9 were recovered. The evidence of P.Ws. 1, 5 and 6 are cogent and without

any material contradiction. The Respondent (original accused No. 2) has also affixed his signature in Ex.P4- search list and admitted that such a

search was made and M.Os 3 to 9 were recovered. Clear evidence has also been adduced through P.W.1, 5 and 6 to the effect that, after search

and recovery, the respondent was taken to the office of the Railway Protection Force where he volunteered to give a confession statement and that

the same was recorded by P.W.1 and attested by P.W.6 and Rajendran. No explanation is forth coming as to how the respondent put his

signatures in the search list and the confession statement marked as Ex.P4 and P5 respectively. He has clearly admitted that no article belonging to

him was recovered, though the articles M.Os.3 to 9 were recovered from his shop. Clear admission has also been made in the said statement that

he used to purchase railway properties unauthorisedly brought to his shop by Durai and sell it to intending purchasers for profit. In this regard,

there is a small discrepancy in the evidence adduced on the side of the appellant/complainant. P.W.1 stated that before coming to the place of the

respondent, he prepared an advance intimation and sent it to the magistrate and he had identified Ex.P3 to be an advance intimation. Pointing out

the fact that all the M.O.s. 3 to 9 have been noted in Ex.P3, the learned Counsel for the respondent contended that the alleged search and

recovery were stage-managed as the said M.Os. had been mentioned in EX.P3 itself. Of course such contention can be accepted provided Ex.P3

happened to be a advance intimation. The mistake seems to have been committed by P.W.1 in identifying the Ex.P3 to be the advance intimation.

In fact Ex.P3 is the occurrence report prepared after arresting the accused persons and after making recoveries and recording of the statements of

the accused persons. The entire sequence of events starting from 4.15 a.m till the sending of the accused persons for remand after 8.30 a.m. has

been narrated in Ex.P3. Therefore it is not correct to state that Ex.P.3 is advance intimation.

Apart from the parole evidence of P.Ws.1, 5 and 6 regarding the occurrence, Exs.P1, P3 and P4 are documentary evidence relating to the

recovery of the articles marked as M.Os. 1 to 9 (1 and 2 from Durai and 3 to 9 from respondent). The appellant/complainant has also relied on

Ex.''s P2 and P5, the alleged confession statements of Durai and the respondent herein, besides the statements of other witnesses marked as Ex.P6

to Ex.P8 and P12. Of course, Ex.P7 and Ex.P12 are statements of the persons examined in this case as P.W.6 and P.W.4 respectively. Ex''s P6

and P8 are the statements of one Rajendran and Babu recorded by P.W.1. Those two persons were not examined as witnesses on the side of the

prosecution. Therefore Ex.P6 and P8, as rightly contended by the counsel for the respondent/accused, have to be excluded from the purview of

admissible evidence. They are former statements of the persons given during the course of enquiry conducted by P.W.1, the Sub-Inspector of

Police, Railway Protection Force. Such former statements shall be admissible u/s 31 if they amount to admissions or u/s 32 if such a statements

had been given by a person who is dead. It is quite obvious that the above said statements do not come either u/s 31 or u/s 32 of the Evidence

Act. Then the other sections which are relevant for consideration regarding the admissibility of former statements of persons are Sections 145 and

157 of the Evidence Act. Section 145 deals with the relevancy of former statements reduced to writing for the purpose of cross examination of the

person making such former statement. Section 145 reads as follows

A witness may be cross-examined as to previous statements made by him in writing, or reduced to writing and relevant to the matter in question,

without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing

can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Even as per the Section 145 such a former statement in writing does not become a primary or substantive evidence. The other provision of law

found in the Evidence Act relating to former statements in writing is Section 157 which reads as follows:

In order to Corroborate the testimony of a witness in respect of a fact his former statement which was made at or about the time when the fact

took place can be given in evidence or the former statement given before any authority legally competent to investigate the fact may also be given

and proved.

Even as per the Section 157 of the Evidence Act, the former statements of persons examined as a witnesses in the case can be used not as

substantiate evidence but as a corroborative piece of evidence.. There is no other provision in the Evidence Act making a former statement of a

person who has not been examined as a witness in the concerned case before the Court as a relevant/admissible piece of evidence. Therefore on

that score alone Ex.P6 and Ex.P8 viz., (statements of Rajendran and Babu) have got to be eschewed from the purview of consideration to arrive

at a conclusion whether the charges framed against the respondent/accused have been proved or not.

So far as the confession statement of Durai (A1) marked as Ex.P2 is concerned, apart from the applicability of the said observation made in

respect of Exs P6 and P8, there is yet another hurdle for its admissibility as a piece of evidence. If at all the statement has to be construed as the

confession of a co-accused if not a former statement of a witness on the side of the prosecution, it will make such statement admissible for the

purpose of either contradiction or corroboration. To make it admissible as evidence to be used against another co-accused, both of them should

have been tried jointly in one and the same trial. This aspect was considered in at least two judgments of Madras High Court, one by division

bench and another by single judge. They are Vijayan @ Jayapandian and Ors. v. State rep. by Inspector of Police, Chidambaram Town Police

Station, Chidambaram, Cuddalore District reported in (2008) 1 MLJ (Crl) 193 (Division Bench) and Mohammed Ashan v. Senior Intelligence

Officer, Directorate of Revenue Intelligence, Chennai - 17 reported in (2008) 1 MLJ (crl) 427 (single Judge). In the former case, adverting to

Section 30 of the Evidence Act and relying on the Judgment of the Hon''ble Supreme Court in Suresh Budharmal Kalani @ Pappu Kalani Vs.

State of Maharashtra, , the Division Bench held in clear terms that when the accused who was said to have made a confession statement implicated

himself and the other accused was not prosecuted jointly with the other accused, such confession statement could not be used against the other

accused. Similar view was expressed by a learned single Judge in Mohammed Ashan v. Senior Intelligence Officer, Directorate of Revenue

Intelligence, Chennai - 17 reported in (2008) 1 MLJ (crl) 427. In Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharashtra, : cited

supra wherein the Hon''ble Supreme Court has held that confession statement of the accused who had been discharged from the case could not be

taken into consideration at the time of framing charges against other accused even though such discharged accused, could at a later point of time be

examined as a witness for the prosecution. The same was also relied on by the learned single judge in Mohammed Ashan''s case. Instances of

inadmissible confession statements of the co-accused have been are:

1) when the co-accused who gave the confession statement pleaded guilty and was convicted and the other co-accused was prosecuted

separately as he had pleaded not guilty;

2) when the accused who had given confession statement was discharged;

3) when the case against such accused was split up and tried separately;

AND

4) when such accused allegedly giving confession statement absconded and the other co-accused alone faced the trial.

They are some of the instances of confession statements of the co-accused, having have been rejected as not admissible against other co-accused

as both of them were not tried jointly in one and the same trial.

Therefore it is crystal clear that Ex.P2, the alleged confession statement of Durai (A1) shall not be relevant and shall not be an admissible piece

of evidence against the respondent herein. The said Durai had pleaded guilty and was punished. The case against the respondent herein was split

up and the respondent herein alone faced trial. Therefore it is quite clear that the confession statement of Durai (marked as Ex.P2) is not admissible

u/s 30 of Evidence Act. However, learned Government Advocate (crl.side) representing the appellant would contend that P.W.1, an official of the

Railway Protection Force, could not be construed as an officer investigating the case and that hence statements recorded by him shall not be hit by

the provision contained in Section 162 of Cr.P.C. If at all it is a statement recorded by a Magistrate u/s 164, then the same can be proved for

either corroborating or contradicting the person making such statement, when he is examined as a witness. If it is a confession statement, then the

condition stipulated in the Section 30 of the Evidence Act may be attracted. In this case, as we have already seen Ex.P2 will not be admissible in

the light of the condition stipulated in Section 30 of the Evidence Act. On the other hand, it may be admissible as a former statement of a witness if

it can be brought within the ambit of Sections 145, 32 or 157 of the Evidence Act. Ex.P2 does not fall under any one of the categories of

statements admissible under any one of the above said sections. Therefore no reliance can be placed on Ex.P2 and same has got to be eschewed.

We have seen that the Ex.P2, Ex.P6 and P8 are inadmissible pieces of evidence and they should be discarded. In a case merely because some

parts of the evidence adduced on the side of the prosecution are to be disregarded as inadmissible,the same need not result in the rejection of the

prosecution case altogether. If the remaining parts of the evidence (after eschewing inadmissible parts of the evidence) are sufficient to prove the

charges framed against the accused beyond reasonable doubt, then there cannot be any grievance against such conviction. In this case, as we have

seen, there are P.Ws.1, 5 and 6 holding testimony as eye witnesses for the occurrence. They have given clear evidence regarding the search and

recovery made at the seen of occurrence viz. at Door No. 95, Gandhi Road, Palanipettai, Arakkonam. P.W.2 and P.W.3 are the alleged railway

officials who have certified that the article recovered from the shop of respondent (M.O.s. 3 to 9) were railway properties and that those

properties were not sold by the railway to any body. They have given clear evidence regarding the examination of those material objects and

certificates issued by them. The certificates issued by them have been marked as Exs P9 and P11. The evidence of P.W.3 is corroborated by his

statement recorded by P.W.12. So also evidence of P.W.6, Manoharan is corroborated by his statement recorded by P.W.1 which has been

marked as Ex.P7. Such statements of the above said witnesses viz. P.W.3 and P.W.6 marked as Exs.P12 and P7 respectively are in fact

admissible for the purposes mentioned in Sections 145 and 157 of the Evidence Act. They do not come under the mischief of Section 162 of

Cr.P.C., as P.W.1 could not be construed to be a police officer and the statement recorded by him could not be treated as the statement recorded

by the investigating officer during investigation.

In this regard, Judgments of Supreme Court in ""(1) Balkishan A. Devidayal v. State of Maharashtra (2) State of Madhya Pradesh and Anr. v.

Hari and Ors."" reported in 1980 Crl.L.J. 1424 can be noticed. The Hon''ble Supreme Court in clear terms, has held that the Sub Inspector of

Police in the Railway Protection Force, who conducts enquiry u/s 8 of the Railway Property (Unlawful Possession) Act, 1966, is not a police

officer and that a person arrested u/s 6 of the Railway Act is not to be construed as a person accused of an offence under Article 20(3) of the

Constitution of India and hence the incriminating statements made by him during enquiry u/s 8 of the said Act is not protected under the Article

20(3) of the constitution of India. Therefore the statements of the above said witnesses recorded by P.W.1 during the course of enquiry conducted

by him are admissible for the purposes mentioned in Sections 145 and 157 of the Evidence Act. They have been used by the

appellant/complainant to corroborate the evidence of P.W.3 and P.W.6. Similarly the confession statement of the respondent himself, which has

been marked as Ex.P5, has clearly supported the prosecution case. This Court is able to find no material contradiction in the evidence adduced on

the side of the prosecution. Ex.P5, produced as the confession statement of the respondent herein(Accused in this case) is not hit by Article 20(3)

of the constitution of India since PW1, who recorded the statement could not be construed to be a police officer as he did not have the power to

submit a final report after conducting an investigation. Cognigance of the offence has been made on a complaint before the Magistrate. It was so

done at a later part of time. The Hon''ble Supreme Court in the Judgment cited Supra has cited it is one of the reasons for holding the statement of

a person arrested by Railway Protection Force during the course of enquiry u/s 6 of the Railway Act was not a statement of a person accused of

an offence and such a statement was not hit by the mischief of Article 20(3) of the Constitution of India. Therefore Ex.P5 confession statement of

the respondent herein becomes a substantive evidence. P.W.4 has corroborated the contents on Ex.P5. regarding the fact that the respondent was

a tenant of the premises from which M.Os. 3 to 9 were recovered. In fact P.W.4''s father was the landlord and he died prior to the occurrence

and there upon P.W.4, his brothers and his sisters became the landlords.

The Appellant/complainant was able to prove that M.Os. 3 to 9 were found in possession of respondent herein and the respondent herein was

not able to discharge the burden of proving that the property came into his possession lawfully. The learned Judicial Magistrate considered the

evidence adduced on the side of the complainant in proper perspective and arrived at the correct conclusion that the charge against the respondent

was proved beyond reasonable doubt. On the other hand, the learned Principal Sessions Judge, Vellore, pointing out a couple of so called

contradictions without properly adverting to the overwhelming evidence adduced on the side of the appellant/complainant, has arrived at an

erroneous conclusion that the appellant/complainant had not proved the charge beyond reasonable doubt. The reasons assigned by the learned

Appellate Judge are not at all convincing and the finding of the Lower Appellate Court can even be termed perverse. Learned Principal Session

Judge, in support of his conclusion has made an observation to the effect that P.W.1 admitted in his evidence that properties were seized in the

presence of stock witnesses. Where from the learned Principle Sessions Judge got such point is not known. Infact there is no such admission made

by P.W.1. The only admission made by him is that P.W..6- Manoharan was also a witness in yet other case, viz.C.C. No. 390/1989. The same

has been wrongly interpreted to be an admission that he was a stock witness. Infact when a suggestion that the witnesses were stock witnesses

was put to the prosecution witnesses, the same was stoutly denied by them.

The contradictions pointed out by the learned Principal Sessions Judge for disbelieving the prosecution witnesses are in fact insignificant and

caused because of fading memory of witnesses deposing after the lapse of several years after the date of occurrence. It should be noticed that

though P.W.5 happened to be an attestor of the Mahazar for the recovery of M.Os. 1 and 2 from Durai, he has not attested either the confession

statement of Durai marked as Ex.P2 or the confession statement of respondent herein marked as E.P5. Even the search list has not been attested

by him. P.W.6 and one Rajendran were the attestors of these documents. PW5 was examined as a person who was present in the scene of

occurrence. The statement made by him in his evidence that he was not aware of the place wherein the confession of the respondent was recorded

and whether he had signed the said confession statement is not enough to disbelieve the case of the prosecution that the respondent gave such a

confession statement when clear evidence has been adduced through P.W.1 and P.W.6. So also the other discrepancy pointed out by the learned

Principal Sessions Judge viz the admission made by P.W.6 that though he signed a written document he was not aware of its contents will not be

enough to disbelieve the prosecution version. As pointed out supra that P.W.6 is an illiterate Coolie. He has given clear evidence regarding seizure

of M.Os. 1 and 2 from Durai, act of Durai in identifying the respondent''s shop and the respondent and the recovery of M.Os. 3 to 9 from the

shop of the respondent herein. He has also clearly accounted for how the confession statement of the respondent was recorded. He has given clear

evidence regarding his attestation of the said confession statement. When such evidence has been adduced on the side of the

Appellant/complainant, the minor discrepancies found here and there were picked up and pointed out by the learned Principal Sessions Judge

dealing with the Appeal for coming to the conclusion that the charge against the respondent herein /accused was not proved beyond reasonable

doubt. The said approach made by the Pincipal Sessions Judge and of course the conclusion arrived at by the learned Principal Sessions judge are

no doubt defective and infirm. The finding of the learned Principal sessions Judge can even be stated to be perverse. The well considered judgment

of the Trial Court should not have been disturbed.

For all the reasons stated above, this Court, without any hesitation, comes to the conclusion that the judgment of the Principal Sessions Judge,

Vellore, reversing the judgment of Trial Court is discrepant, against law and liable to be set aside and that the Judgment of the Trial court

convicting the respondent herein shall be restored.

The trial court had awarded the sentence of imprisonment till raising of the court and a fine of Rs. 5,000/-. The punishment prescribed for an

offence u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (29 of 1966) is ""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

So far as the punishment is concerned, the section provides for imposition of a sentence of imprisonment for a term which may extend to five

years. The same section provides that such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees.

When a minimum punishment is prescribed under a penal provision which provides for sentencing the accused, the imprisonment or fine or both

then the minimum punishment prescribed shall not be applicable to both imprisonment and fine. On the other hand, the minimum punishment

prescribed shall be applicable either to the substantive imprisonment or to the fine alone. This has been made clear in Abdul Rashid Vs. State of

U.P., , a case decided by the Allahabad High Court. The observations made therein are as follows:

In our opinion the bare perusal of the provisions does not lead to an inference that a court must impose a sentence of one year as well as a fine of

one thousand rupees. It is in the discretion of the court to pass sentence of imprisonment or fine or both. Ordinarily, the imprisonment shall not be

less than one year and the fine shall not be less than one thousand rupees unless the court gives special and adequate reasons for awarding lesser

punishment. In the present case, the courts below have sentenced the accused-applicant to one year''s rigorous imprisonment. We think that the

court below could imprison the accused by imposing fine only.

If the said ratio is applied to the case on hand, this Court has to hold that the imposition of the fine of Rs. 5,000/- shall be a valid reason for

imposing a lesser sentence of imprisonment. In this case, the trial court awarded a sentence of imprisonment till the raising of the court and imposed

a fine of Rs. 5,000/-. This Court does not consider the same to be unreasonable. Therefore, this Court comes to the conclusion that the trial

court''s order of punishment can also be restored. It has also been brought to the notice of this Court that the sentence of imprisonment till the

raising of the court had been undergone and the fine imposed by the trial court was also paid. It is also brought to the notice of this Court that in

view of the pendency of this appeal, the fine amount collected from the respondent was not refunded. In view of the same while reversing the

judgment of the lower appellate court and restoring the judgment of the trial court regarding conviction and sentence, the fact that the substantive

sentence has already been undergone and the fine amount has already been collected shall be recorded and it shall be made clear that the direction

incorporated in the judgment of the lower appellate court for refund of the fine amount collected from the respondent herein shall also stand set

aside. As the fine has been paid and the sentence has been already undergone, the bail bond, if any executed by the respondent shall be cancelled.

In the result, this appeal is allowed and the judgment of the lower appellate court reversing and setting aside the judgment of conviction and

sentence passed by the trial court is set aside. The judgment of conviction and order of sentence passed by the trial court is restored. The fact that

the respondent/accused has served the sentence and paid the fine is recorded. The bail bond, if any, executed by the respondent/accused shall be

cancelled.