Union of India vs A. Ashok and Others

N. Ananda, J.—The respondents arrayed as accused Nos. 2, 6, 7, 8 and 11 were tried and acquitted for an offence punishable u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short ''the Act''), by the learned Magistrate. Therefore, the State is before this Court. It is noticed that accused Nos. 1, 3 to 5 and 10 were absconding. Therefore, the case against them was separated. Accused No. 11 was discharged.

I have heard the learned SPP.

It is the case of prosecution that about 10-12 days prior to 10.10.1984, accused Nos. 2 and 6 along with accused Nos. 1, 3 to 5 and 10 had committed the theft of C.R. Sheets and other materials belonging to Railways. They took the assistance of accused No. 8 and sold the said properties to Madhu Steel Corporation belonging to accused No. 7, of which accused No. 11 was the proprietor and thereby committed an offence punishable u/s 3(a) of the Act. The accused were also found in unlawful possession of brake blocks which are railway properties.

In view of the acquittal of accused for the afore-stated offence, following points would arise for determination:--

(i) Whether the prosecution has proved that about 10-12 days prior to 10.10.1984, accused Nos. 2 and 6 to 8 had committed theft of C.R. Sheets from Channasandra railway station and on 10.10.1984, accused Nos. 2, 6 to 8 were found in possession of brake blocks which are railway properties and thereby committed an offence punishable u/s 3(a) of the Act?

(ii) Whether the learned trial Judge has properly appreciated the evidence on record?

(iii) To what order?

At the relevant time, PW-1 N.K. Padmanabhan was the Inspector of Railway Protection Force in Byappanahalli railway station. PW-1 has deposed that on 10.10.1984 at about 2.30 a.m., (mid night) PW-1 and his staff members were making a confidential watch near Channasandra railway station in connection with theft of C.R. Sheets on 02.10.1984. PW-1 and his staff members noticed accused Nos. 1 to 6 at a distance of 150 mtrs. from Channasandra over bridge, they were found carrying some heavy objects. They detained accused Nos. 1 to 6 in a Mantapam to the east of Channasandra railway station. They searched their persons. Accused Nos. 1 to 3 were found in possession of two brake blocks and one pig iron piece concealed in a gunny bag. Accused Nos. 4 to 6 were found in possession of 2 brake blocks concealed in a gunny bag. PW-1 could not secure independent witnesses. Therefore, he seized the above incriminating materials under Ex. P1. He recorded the statement of accused Nos. 1 to 6. On 10.10.1984, accused Nos. 1 to 6 led PW-1 and other witnesses to the City Market area and showed the shop of one Usman Khan. Accused No. 7 was present in the said shop. Accused Nos. 1 to 6 identified accused No. 7, in turn, accused No. 7 identified accused Nos. 1 to 6. PW-1 conducted search in that shop and found 40 numbers of brake blocks and one Aluminium name board written as ''Bokaro Steel city''. He also recovered 106 C.R. Sheets and prepared search list and mahazar. The accused were brought to the RPF post. Later they were produced before the learned Magistrate. During cross-examination, PW-1 has admitted, the distance between the place where he sighted the accused is 100-150 mtrs. He has admitted, he recorded the statement of accused between 2.30-3.30 a.m. He has admitted that brake blocks are generally stocked in the office of train examiner. He did not examine the officer of train examiner to confirm the brake blocks had been stolen from the office of train examiner. He did not verify the wagons in which C.R. sheets had been consigned from Bokaro to Channasandra.

The evidence of PW-6 that accused were carrying brake blocks on 10.10.1984 at 2.30 a.m., even after seeing PW-1 and other railway staff members, they did not dispossess the brake blocks which were allegedly carried by them and they did not try to run away to avoid apprehension by PW-1 looks improbable.

In addition to this, the documentary evidence marked as Ex. P25-Prisoners Search Register, does not reveal that accused Nos. 1 to 6 were apprehended at 2.30 a.m., on 10.10.1984 and PW-1 had searched the persons of accused Nos. 1 to 6 and found the afore-stated properties in their possession. From the perusal of Prisoners Search Register Ex. P25), we find the names of A. Ashok, Kuppuswamy, Shiva @ Shivalingam, Chinnaiyan @ Sekkam, Kanagaraj @ Mannan are mentioned. However, in the column meant for description of the properties found in possession of searched persons, we do not find that the afore-stated properties were recovered from the possession of accused.

There is discrepancy regarding apprehension of the accused. The learned trial judge on appreciation of evidence adduced by the prosecution and evidence adduced by the defence held that accused No. 7 was arrested and detained by railway authorities on 08.10.1984.

P.W. 1 and other railway authorities have not inspected the room of Train Examiner to verify if the railway brake blocks had been stolen from the Train Examiner''s room. As already stated, CR Sheets which were allegedly stolen on 02.10.1984 were consigned from M/s. Bokaro Steel Plant. The evidence on record does not disclose the date on which the wagons containing CR sheets had reached Channasadra Railway Station. P.W. 1 and other officials had not verified the wagons to find out if CR Sheets had been stolen from the wagons.

In view of discrepant evidence and failure of prosecution to prove that accused were found in possession of railway property, the learned trial judge has acquitted the accused. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.