THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1464 OF 2005 Dated:10.12.2009 Between: The Inspector, RPF., S.C., Railways rep., by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Appellant/Petitioner And Vintha Venkata Reddy and another .. Respondents/Accused JUDGMENT: The acquittal of both the accused in C.C.No.61 of 2003 on the file of the VII Metropolitan Magistrate for Railways, Vijayawada by the judgment dated 31.03.2005 led the State represented by the learned Public Prosecutor to prefer the present appeal. The factual background for the appeal is that in Crime No.2 of 2002 of Railway Protection Force Station, Guntur, the Inspector filed the complaint against both the accused alleging that on 12.04.2002 at about 5.45 p.m., the Inspector along with his staff apprehended the first accused, who was returning after procuring Railway Reservation tickets, and the first accused disclosed that he was working as a clerk under the second accused, owner of Sky Way Travels, and that he purchased four railway reservation tickets seized, on his instructions. Apart from two cancellation tickets, the first accused had also cash of Rs.4,050/- and Sky Way Travels was also visited by the Inspector along with staff, from where 11 railway reservation tickets, eight cancellation tickets and 22 copies of invoice/credit notes were seized. For both the incidents, there were panchanamas before independent mediators and the accused were alleged to be arranging such tickets for passengers without any permission or licence or authorization. The Inspector was also claimed to have examined a number of such passengers during investigation and, hence, concluded that the accused have committed an offence punishable under Section 143 of the Indian Railways Act (for short ‘the Act’). After the accused entered appearance, on the case being taken on file, copies of documents were furnished to them and the Inspector was examined as PW.1 in the first instance, apart from PW.2, while marking Exs.P1 to P56 and M.O.1, and then the accused were examined and a charge under Section 143 of the Act was framed against them, for which they pleaded not guilty. PWs.1 and 2 were further examined and PWs.3 to 16 were examined by the prosecution. Exs.P57 to P72 were also marked and the accused denied the incriminating circumstances appearing against them when they were examined under Section 313 Cr.P.C. They had no defence evidence. The trial Court rendered the impugned judgment noting that the investigating officer did not prepare any rough sketch or observation report of the scene of offence. The trial Court also noted that Ex.P1 panchanama was clear that the first accused was apprehended immediately after he purchased railway reservation tickets at the Reservation Counter. The Court also observed that the tickets were purchased on 10.04.2002 and 12.04.2002 long prior to 5.45 p.m., on 12.04.2002 and hence it was improbale that they were seized at 5.45 p.m., on 12.04.2002 as alleged. The trial Court also noted that PW.16, railway employee was not proved to have the permission to act as a mediator, while no independent mediators were present for the arrest of either accused. The trial Court further observed that the original requisition forms for Exs.P2 to P5 were not seized and the failure of the prosecution to produce any record of employment of the first accused under the second accused was also taken adverse note of, and consequently, the benefit of reasonable doubt was given to both the accused by the trial Court and the accused were acquitted. The State represented by the learned Public Prosecutor contended in the appeal that the consistent and reliable testimony of the prosecution witnesses about procuring and supplying railway tickets by the second accused, under whom the first accused was working, without any licence or permission or authorization, should have been accepted and the case could not have been thrown out on surmises and conjectures. Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor for the appellant, and Sri G.Pedda Babu, learned counsel for the accused, are heard. The point for consideration is whether the prosecution proved the guilt of either accused for an offence punishable under Section 143 of the Act beyond reasonable doubt? POINT:- Exs.P2 to P5, railway reservation tickets, Exs.P6 and P7, railway reservation cancellation tickets, and M.O.1, cash of Rs.4,050/- were claimed by PW.1 to have been seized from the first accused, while he was coming from the reservation complex at 5.45 p.m., on 12.04.2002 after he admitted being a clerk under the second accused and purchasing such reservation tickets every day on the instructions of the second accused. PW.1 also claimed to have seized Exs.P10 to P50 reservation tickets, cancellation tickets and invoices/credit notes from the second accused as listed in Ex.P51 at his shop. PW.1 prepared Exs.P1 and P9, mediators reports, and Exs.P52 and P53, statements of the accused. While Exs.P54 and P55 are the statements of the mediators, Ex.P56 was stated to be the special report prepared by PW.1. PW.1 admitted that he did not obtain any permission from the railway authorities for utilizing the services of the two mediators, who are railway employees. He also admitted that the original requisition forms relating to Exs.P2 to P7 were not verified by him and PW.1 did not admittedly prepare any rough sketch of the scene and did not even make any general diary entry at the Railway Protection Force Station, Guntur. Though there were a tea stall and S.T.D. booth nearby and though railway porters were moving around, none of such independent persons were requested by PW.1 to act as mediators and though the shop of the second accused is in a busy locality, PW.1 did not call any persons around to act as mediators and did not prepare any observation report at the shop of the second accused. Though PW.1 is interested in the prosecution only in discharge of his official duties, being the investigating officer himself, his evidence cannot be considered to be totally disinterested and it will be a safe rule of prudence to look for independent corroboration for his claims. PW.2 admitted the second accused to be an authorized travel agent for Indian Airlines extending services to air travel customers to book railway reservation tickets and he did not examine the passengers named in Exs.P29 to P50, or the Manager of Sky Way Travels. He did not seize the accounts of the second accused pertaining to the documents seized or the requisition forms and he also admitted that Ex.P51, seizure list did not relate to Exs.P29 to P50 with reference to the names of the passengers. The evidence of PWs.3 to 11 about issuance of various tickets does not in any manner implicate either accused, as it was clear from their evidence that they issued such tickets on the strength of duly filled up requisition forms by the passengers. PW.12, the executive of I.T.C., Guntur, had no personal knowledge about the details of the tickets booked by their company and never had any direct transactions with Sky Way Travels of the second accused. He did not even know whether Ex.P15 ticket was booked by their company through the travel agency of the second accused. The claims of PWs.13 and 14 were of no help in the absence of any receipt with PW.13 for the money allegedly paid by him or any other document relating to entrusting the work of booking railway reservation tickets to the second accused and as PW.14 did not personally approach the second accused for purchasing the railway reservation ticket. The evidence of PW.15 about Ex.P61 had no direct bearing on the culpability of the accused while PW.16, who claimed to have acted as a mediator for the apprehension of both the accused, as a railway employee, ought to have been on duty at the relevant timings and did not state about obtaining any permission for acting as a mediator by staying away from his duties at the relevant time. The timings at which Exs.P2 to P5 were purchased and the belated seizure of Exs.P2 to P5 at 5.45 p.m., on 12.04.2002 make the version not very credible as the first accused would have had no reason to carry the railway reservation tickets etc., with him personally long after they were booked without keeping them in his office or delivering them to the passengers. While the passengers named under the different tickets seized were not before the trial Court, the circumstances undoubtedly make both the accused entitled to the benefit of reasonable doubt. As an offence under Section 143 of the Act can be considered to be established only if the procuring and supplying of tickets for travel on a railway or for reserved accommodation for journey in a train was carried on as a business by the persons concerned, either the first accused or the second accused cannot be considered to have been proved to be carrying on such business, within the scope of Section 143 of the Act. The mere fact that some tickets were procured by the first and second accused, may be at the request of others, cannot be considered to have made them liable for the penalty under the provision. The conclusion of the trial Court in this regard giving the benefit of reasonable doubt to the accused cannot, therefore, be faulted. In the result, the Criminal Appeal is dismissed. ___________________ G. BHAVANI PRASAD, J 10th December 2009 KH