ORDER (ORAL)

Being aggrieved and dissatisfied with the judgment and order dated 5/6/99 passed by the learned Special Judicial Magistrate, First Class (Railway), Tinsukia in Case No. SR/CR No. 19/97 acquitting the accused/respondents from the charge u/s 3(a) of the Railway Protection (Unlawful Possession) Act, 1966, the Union of India, Railways Protection Force through the Chief Security Commissioner, Railway Protection Force, Prosecution, Railway, N.F Railway, Guwahati has preferred this appeal.

2. I have heard Mr. J. Singh, learned Sr. Standing Counsel for the Railways/appellant and Mrs. S. Roy, learned counsel appearing for the respondents/accused Nos. 3 to 8.

3. Initially, all the charge sheeted accuseds numbering 10 were impleaded as respondents in the appeal but subsequently in terms of the prayer of the appellant, the name of respondent No. 10 was deleted as per order dated 29/5/09. During the course of pendency of the appeal, respondent Nos. 1 and 2 namely, Rama Kanta Bhumiz and Lakhikanta Bhumiz, having expired, the appeal against them have been abated. Consequently, the present appeal survives only in respect of the remaining 7 accused persons out of which accused No. 9, Parimal Choudhury, in spite of service of notice upon him has preferred not to contest the proceeding.

4. The prosecution case, in brief, is that on 24/4/97 accused Sukra Mura was proceeding towards Captainchuk of Tinsukia Town at Hijuguri Railway yard carrying wooden sleeper on his shoulder, he was intercepted by railway constable Sri Jibit Chandra Das with the help of railway contract labourers and Head constable Hassan Ali. On interrogation, accused Sukra Mura failed to offer any satisfactory reply of such possession of the wooden slipper carrying from the Hijuguri railway yard which was fitted with 3 numbers of dogspikes. On the basis of the statement of Sukra Mura, a raid was conducted by the investigating agency in the houses of the other accused persons and recovered from their houses in total 29 numbers of wooden Slipper fitted with 82 nos. of dogspikes, 8 nos. of bearing plates and 1 no. of special bearing plate, 13 nos. of broken wooden sleeper fitted with 13 nos. of dogspikes, 9 nos. of separated bearing plates, 2 nos. of brakeblocks, 14 nos. of universal coupling and 1 nos. of sakle pin.

5. During the course of inquiry, the I/O found that the accused Sukra Mura is the main accused who was caught red-handed while stealing one wooden railway sleeper from the TSKG yard and on interrogation, he also admitted that on several occasions he used to steal wooden sleepers and sold them to other accused persons of Captainchuk area. He also stated that he could identify those persons who kept hidden the sleepers in their houses and on the strength of his statement, a raid was conducted in the houses of the other accused persons/respondents and the recovery of the materials, as indicated above, were made. The I/O having found a prima-facie case, punishable u/s 3(a) of the RP(UP) Act, 1966, submitted necessary report to that effect before the Railway Magistrate for necessary trial.

6. The learned trial court after perusal of the materials submitted by the I/O and hearing the parties framed charge u/s 3(a) of the Act and to which the accused persons denied and claimed to be tried.

6. During the course of trial, the prosecution examined as many as 7 witnesses whereas the defence adduced none. The accused persons were examined u/s 313 Cr.P.C bringing to their notice the circumstances that appeared against them during the course of trial, but they denied the circumstances.

7. The learned trial court for the purpose of deciding the case formulated the following points:

“1. Whether the case properties in question are railway property”

2. Whether these case properties can be reasonably suspected to have been stolen or unlawfully obtained from the railway administration”

3. Whether the case properties in question are found in possession of accused persons or proved that accused persons were or had been in possession of that wooden sleeper and iron materials (i.e the case properties).

8. After discussing the evidence and materials available on record, the learned trial court held the point No. 3 in favour of the prosecution holding that the properties in question were found in possession of the accused persons. However, the learned trial court, decided the point Nos. 1 and 2 against the appellant and acquitted the accused persons vide judgment and order dated 5/6/99, which is eh subject matter of this appeal.

9. Mr. J. Singh, learned Standing counsel submits that the finding of the learned trial court to the effect that the articles which were seized from the possession of the accused persons are not the railway properties is absolutely a perverse one inasmuch as although the learned trial court held that the prosecution did not prove the fact by examining the contractor that the accused persons had been in possession of the materials, in fact the contractor was examined as PW.3 and one of his representative was also examined as PW No. 6 and the prosecution witnesses clearly proved that the properties in question were the railway property and on the other hand, the accused persons could not offer any reasonable reply as to how the railway properties came to their possession and accordingly provision of Section 3(a) of the R.P (UP) Act would be attracted in the instant case.

10. Ms. B. Roy, learned counsel appearing for the respondents Nos. 3 to 8, however, submits that the evidence of the prosecution witnesses are contradictory in nature and the same did not inspire the confidence to put any reliance, particularly, as regards the recovery of the materials from the possessions of the accused persons and as such the learned trial court has rightly acquitted them. It is, further, contended that the occurrence having taken place in the year 1997 and after a long gap of about 13 years, the accused persons may not be convicted on the face of so many loopholes on the prosecution case, including the recovery and seizure of the articles.

11. I have considered the submissions made by the learned counsel for the appearing parties. As indicated above, the present appeal raised against the 7 accused persons out of which the accused No. 9 has preferred not to contest the appeal. The submissions of the learned counsels led me to go through the statements of the prosecution witnesses and other materials on record.

12. PW.1, in his deposition stated inter alia that on 24/4/92 at about 9.50 PM he along with one Hassan Ali caught red-handed the accused Sukra Mura while he was carrying a wooden sleeper and brought the accused to the RPF post, Tinsukia and lodged a complaint before the Inspector, as per Ext.1 the aforesaid facts was duly corroborated by the Inspector, RPF Post who was examined as PW.2 PW.2 seized the wooden sleeper vide Ext.2 in presence of PW.3 and PW.6 who were the railway contractor and his representative respectively.

PW.3, has specifically stated that when they undertook the work of conversion of meter gauge into broad-gauge, materials of meter gauge were in their custody and upon completion of the work articles are to be deposited to the railways and in the event there is shortfall of such materials double the recovery is made from them. As regards that part of the statement of PW.3, there is no cross examination by the defence side at all.

Statement of PW.3 and PW.6 are fully corroborated by the evidence and statement of PW.2 From the statement of the aforesaid witnesses, it is clearly proved beyond all reasonable doubt about the fact of the recovery and the seizure of the wooden sleeper from the possession of the accused persons. It is also in the evidence of PW.3 and PW.6 that the accused Sukra Mura led them to the houses of other accused persons wherefrom certain other offending materials such as railway sleepers fitted with Brakeplates and dogspikes etc. were recovered which were seized vide Seizure list Ext. 9, 10, 11, 12 and 13.

PW.4, Manik Dey, is the Junior Engineer served in the Mechanical Department at Tinsukia in the NF Railway. He was an intermediate apprentice of Train Examiner and has got sufficient knowledge about the railway coaches. He certified the seized properties to be the railway properties which are produced before him as M. Ext.1(1). His statement is corroborated by another witness i.e PW.5 who is serving in the Railway Engineering Department for last 13 years and served as a Junior Engineer, Railway, Tinsukia and who has also proved the seized articles as Ext. 1 to 6 to be railway properties.

13. Although, the defence tried to show certain irregularities as regards the seizure of the recovered goods for non examination of any independent witness as seizure witnesses those are mere irregularity and does not affect the factum of seizure thereby. Learned trial court also held that the seizure was duly made vide Ext.9 to 13 seizing the materials recovered from the possession of the accused persons.

14. PW.4 and PW.5 in their report, vide Ext. 14, 19 and 20 proved that the articles in question belong to Railway. However, the learned trial court in determining the point Nos. 1 and 2 against the appellant on the ground that railway contractor was not examined and the PW.4 deposed that the seized materials become useless and unserviceable. The aforesaid finding of the learned trial court is absolutely a perverse one inasmuch as the railway contractor was examined as PW.3 and his representative was also examined as PW.6

15. From the evidence of PW. 3 and PW.6, it can be categorically found that the seized articles were the railway properties under the control and possession of the railway authorities through their contractors. It is also on evidence that at the time of completion of the contract if there is any shortfall in delivery of the articles by the contractor, double the value is recovered from the bill of the contractor. The claim of right over the property always remains with the owner i.e the Railway administration. Accordingly, the finding as regards point Nos. 1 and 2 as held by the learned trial court is based on perversity and mis-interpretation of relevant facts proved in the case and the same is not sustainable in law.

16. The learned trial court itself found that the recovered items have been seized from the possession of the accused persons and PW.4, PW.5 and PW.6 have categorically deposed that the articles are the railway properties and there is no challenge to the aforesaid statement of the prosecution witnesses, by the defence.

17. As indicated above, the appeal against accused Nos. 1 and 2 has been abated whereas the main accused, namely, Sukra Mura is not prosecuted by the trial court. Now, it is to be seen whether in the absence of Sukra Mura whether the other accused persons can at all be convicted. For this purpose, we are to turn to the provision of Section 3 of the RP (UP) Act of 1966.

18. Section 3 of the Act provides that 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. Careful reading of the Section 3 of the Act disclose that an unexplained possession of railway property which is being suspected to be stolen or unlawfully obtained is sufficient enough to attract the provision of Section 3 of the Act. In the instant case, from the statement of the prosecution witnesses, it is proved that the articles in question were recovered from the possession of the accused persons/respondents and those articles have been proved to be the railway property by clear, cogent and impeachable evidence.

19. The prosecution witnesses further disclose that accused persons/respondents (other than Sukra Mura) purchased those articles from the accused Sukra Mura. Admittedly, such purchase of railway property cannot be said to be lawful or legal. That apart, after purchasing those articles from the accused Sukra Mura, they kept those articles hiding in their houses which were recovered later, on being led by accused Sukra Mura. This unlawful possession of railway property is, itself, sufficient enough to attract the provision of Section 3 of the RP(UP) Act, 1966.

20. From the above discussions, I am of the considered view that the prosecution was successful in proving the case against the accused person/respondents under Section 3 of the Act beyond all reasonable doubt. Accordingly, the order of acquittal passed by the Special Magistrate is liable to be reversed, which I hereby do.

21. In view of the above discussion, the accused persons/respondent Nos. 3 to 9 are convicted u/s 3(a) of the RP(UP) Act. At this stage, Ms. S. Roy learned counsel for the respondents has prayed for showing leniency in awarding punishment submitting that being the occurrence took place way back on 24/4/97 and all the respondents are belong to the lower strata of the society and infact they themselves did not stolen the properties in question but purchased from the main culprit, namely, Sukra Mura who has not been prosecuted by the prosecution. That apart all of them are now much advanced in their age and settled in life.

22. Learned counsel for the appellant is also heard on this point. After giving due consideration to the submissions so made on the point of sentence by the learned counsel for the parties, it is my considered view that in the instant case the appellant has not prosecuted the main accused Sukra Mura who, in fact, had stolen the articles from the railway yard TNS and sold out to the other accused persons. No previous conviction of the accused persons has been brought on record. They hail from the poor and illiterate family. Moreover, by now 13 years have elapsed from the date of occurrence and have now settled in life. Considering the above aspects, the accused persons are sentenced to undergo imprisonment for the period they were under custody during investigation and trial and to pay fine of Rs. 1,000/- each, in default, further rigorous imprisonment for 1(one) month, each.

23. The accused persons are directed to pay the amount within a period of 2(two) months from today and in default, they shall serve out the sentence as indicated above. The learned trial court shall take appropriate steps in this regard.

24. The appeal stands succeed to the extent as indicated above. Send down the LCR Forthwith.