-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 901 OF 2001 CRIMINAL APPEAL NO. 901 OF 2001 CRIMINAL APPEAL NO. 901 OF 2001 The State of Maharashtra ¦ .. Appellant. (Org.Complainant) V/s. Shri Sanjay Ramappa Reddy, ¦ .. Respondent. Age 23 years, Zaribag Zopadpatti ¦ (Org.Accused) Miraj, Tal. Miraj, Dist.Sangli. , ¦ --- Mr.A.S. Shitole, APP for the Appellant- State. Mr.R.M.Momin, for the Respondent. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 19TH MARCH, 2009 DATED : 19TH MARCH, 2009 DATED : 19TH MARCH, 2009 ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. The Appellant -State by the present Appeal takes exception to the impugned judgement and order passed by the learned Magistrate, recording respondent’s acquittal of the offence punishable under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. (for short, hereinafter referred as "R.P.(UP) Act"). The prosecution case in brief is as under : 2. On 25th of March, 1992, the Railway Police Force Constable -Shri K.M. Patel apprehended the accused no.1 Bhimrao Nagu Bansode who was carrying railway material i.e. 4 Nos. of Helical coil springs and 7 Nos. of brake box in gunny bag on a bullock cart near B.G. Coaching yard Miraj. -: 2 :- At that time, two persons sitting over the cart jumped down and ran away. The constable brought the bullock cart and the accused no.1 Bhamrao Nagu Bansode, the driver of the of the bullock cart near the railway phone and informed the Sub-inspector, R.P.F.,Miraj about the said fact on phone. Thereafter, the said Sub-Inspector, Railway Force visited the spot. The railway property with bullock cart was seized under panchanama at Exh.18. The respondent/original accused no.2 came to be arrested on 27.03.1992 in pursuance of the voluntary statement of the accused no.1, Bhimrao Nagu Bansode and C.R. No.15/92 was registered against the respondent accused under section 3 (a) of the R.P.(UP) Act. 3. Thereafter, the Investigating Officer sent the seized property for examination before the train examiner Miraj and obtained certificate that it is a railway property. After completion of the investigation a complaint is filed before the Judicial Magistrate, First Class, Railway Court, Pune. 4. The learned Judicial Magistrate, F.C.,Railway, Pune framed charge against the original accused no.2- present respondent - Sanjay Ramapa Reddy and Bhimrao Bansode, the original accused no.1, under section 3(a) of the R.P.(U.P.) Act. The charge was explained to the both accused in vernacular to which they pleaded not guilty and claimed to -: 3 :- be tried. 5. During the pendency of the trial, the accused no.1 Bhimrao Bansode expired. The defence of the respondent- accused no.2 was of total denial. 6. The prosecution in order to prove the charge against the respondent, examined 7 witnesses, namely, PW-1-Chawala Jaganath Chakradhar, the R.P.F. Sub-Inspector, Miraj; PW-2- Dastagir Babu Kalawant, a panch witness to the seizure panchanama at Exh.18; PW-3- Kutbuddin M. Patel, a Constable at Miraj; PW-4- Laxmikeshav S/o Subramanyam, a Head Train Examiner; PW-5- Mirasab Alisab in whose presence statement of both the accused were recorded; PW-6 Digambar Dattatray Bainwad, who recorded statement of the respondent -accused no.2 and PW-7 -Vinayak Tolaram Gosavi, the owner of the bullock cart. 7. The learned Magistrate after going through the depositions of the prosecution witnesses concluded that there is no evidence about the respondent -accused no.2’s complicity in the alleged evidence and therefore, acquitted him of the charge levelled under section 3(a) of the R.P.(UP) Act. 8. Having heard the learned counsel and having gone -: 4 :- through the evidence led by the prosecution, I do not find any merit in the appeal. PW-3 Kutbuddin M. Patel deposed that on the date of the incident i.e. on 25th of March, 1992 while he was on patrolling duty he noticed one bullock cart was going by the road in between two quarters. He saw three persons, one was on bullock cart and two were adjoining to the bullock cart. He apprehended the person sitting in the bullock cart who disclosed his name as Bhimrao Nagu Bansode, i.e. the deceased accused no.1. He further testified that other two persons, who were adjoining to the bullock cart, ran away. 9. PW-1 PSI Chawala Jaganath Chakradhar has deposed that PW-3 K.M.Patel found one person carrying railway material. After information he went on the spot. He made enquiry with the accused no.1 Bhimrao Bansode, who stated that he alongwith one Sanjay Ramappa Reddy and one Chakrayya came on bullock cart to the B.G.coaching Yard, Miraj and removed helical coil springs brake box, secured the brake box in gunny bag, loaded the same in the bullock cart, which were noticed by duty constable, who apprehended him. PW-2 is the panch witness to the seizer panchanama at Exh.18 under which railway articles were seized from accused no.1. PW-4 is a Head Train Examiner, who certified that the article seized under above panchanama are the Railway property. Thus evidence of PW-2 and PW-4 is not helpful to the -: 5 :- prosecution to prove the respondent’s complicity in the alleged offence. PW-5 is the panch witness to the statement of the accused. PW-6 is the police personnel, who has recorded the statement of the accused no.2. Evidence PW-7 is again not useful to the prosecution since he is the owner of the vehicle and that he had given his bullock cart on daily wages. 10. On the basis of the evidence of PW-1, PW-5 and PW-6 the prosecution sought to establish the respondent’s complicity in the alleged offence. The evidence of PW-1 Sub-Inspector,Miraj merely disclosed that the deceased accused no.1 Bhimrao Bansode told him that the present respondent/ accused no.2 was present at the time of incident. The statement of the co-accused Bhimrao Bansode cannot be used against respondent and therefore, the evidence of PW-1 is not helpful to the prosecution. Likewise the evidence of PW-5 and PW-6 is also not helpful to the prosecution in view of the provisions of sections 25 and 26 of the Evidence Act. Both the PW-5 and PW-6 are railway police personnel and therefore, the statements made before them are unacceptable in evidence to prove the prosecution story. 11. The learned Magistrate has correctly appreciated the evidence on record and acquitted the respondent for want of -: 6 :- evidence. I do not find any error in the approach adopted by the learned Magistrate. In the result the appeal has no merit. It is accordingly dismissed. (R.V.MORE,J.)