1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Smt. Chameli Bai Vs. State of Rajasthan SB CRIMINAL REVISION PETITION NO.130/2005. Under Section 397 read with Section 401 of the Code of Criminal Procedure. DATE OF ORDER: 15th July, 2008. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Neeraj K. Tiwari for the petitioner. Mrs.Nirmala Sharma PP for the State. BY THE COURT: This revision petition is directed against the judgment dated 14th January, 2003 passed by the learned Additional District & Sessions Judge No.2, Ajmer in Criminal Appeal No.94/2002 whereby conviction recorded against Chiman Lal under Section 3 of the Railways Property (Unlawful Possession) Act, 1966 (in short referred to as, 'the Act') has been maintained but instead of sentencing the accused gave benefit of the provisions of Probation of Offenders Act. It has been contended by the learned counsel for the petitioner that in the instant case the recovery from the possession of the accused has not been established, therefore, the entire case of the prosecution stands demolished. Learned counsel further contends that the learned appellate court has not properly appreciated the evidence in the case. It has also been contended 2 that the learned trial court has also not discussed the evidence properly. On the other hand, learned Public Prosecutor contends that the learned trial court as well as the learned appellate court both have discussed the evidence led by the prosecution. It is also contended that before the learned appellate court conviction was not challenged but the learned appellate court also discussed the merits of the case, therefore, there being concurrent findings of the two courts below, the same do not require to be disturbed under the revisional jurisdiction of this court. I have considered the submissions made before me and perused the impugned order as well as the material available on record. The case of the prosecution is that against accused Chiman Lal, a complaint was filed under section 3 of the Act, wherein it was alleged that on the basis of some information received by Chief Guard damodar Prasad and Nayak Vasudeo, the railway property was recovered from the drain. It was also alleged that the accused threw the railway property from the window. The property of the railway was recovered from the possession of the accused Chiman Lal. The accused was arrested and complaint was filed. Two witnesses were examined as pre- charge evidence. Thereafter, charge was framed against the accused under section 3 of the Act. Again the witnesses were called and examined. In all statements of six witnesses were 3 recorded by the learned trial court. In the statement of the accused Chiman Lal recorded under section 313 Cr.P.C., he denied the allegations levelled against him and stated that he has falsely been implicated in the case. No evidence in defence was produced. Certain documents were tendered in evidence. Learned trial court on the basis of the evidence found that from the possession of accused Chiman Lal, one brass compressure valve was recovered which was about 2 kg. of weight. The above valve was railway property. The learned trial court after hearing both sides convicted accused Chiman Lal under Section 3 of the Act for one year simple imprisonment and a fine of Rs.2,000/-, in default thereof to further undergo three months simple imprisonment vide judgment and order dated 21.3.2002. An appeal was preferred against the judgment of conviction and sentence recorded which was partly allowed by the learned appellate court. The learned appellate court maintained the conviction under section 3 of the Act but instead of sending the accused to jail to undergo the sentence awarded by the learned trial court gave benefit of the provisions of the Probation of Offenders Act vide judgment dated 14.1.2003. A perusal of the impugned judgment passed by the learned appellate court clearly indicates that the finding was not challenged at all and on the contrary it was submitted that looking to physical condition of accused Chiman Lal, his matter requires sympathetic consideration. The learned appellate court inspite of 4 the fact that merits were not challenged still considered the merits of the case in finding that on the basis of the evidence of PW-2 Damodar Prasad and PW-3 R.C. Dixit, it was amply proved that the railway property was recovered from the possession of the accused. The learned trial court also found that the recovery of the railway property was effected from the accused. A perusal of the above submissions confirms the factum of possession of the railway property without any explanation. Thus, it is not necessary to discuss the evidence recorded by the learned trial court in detail. The contentions made by the learned counsel are not tenable. The learned appellate court has already considered the matter sympathetically as instead of sending the accused to jail to undergo the sentence awarded by the learned trial court, the benefit of the provisions of the Probation of Offenders Act was given. The revision petition is devoid of merit and is liable to be dismissed. In the result, the revision petition stands dismissed. (S.P. PATHAK,J) bblm