1 crapl116.01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.116 OF 2001. The State of Maharashtra, through Railway Protection Force, Bhusawal Yard, Bhusawal. ...APPELLANT. VERSUS 1. Vijaykumar s/o Dwivedee, age 22 yrs., Cipahi No.14410157, Unit No.1162, Midimum Battery Artilary Centre, Devlali, Dist. Nasik. 2. Sukumar Patil, age 26 yrs., Cipahi No.10150346, Unit No.109, Infrentry Battalien (T.A.), Maratha Infrentry Attachment, Dehu Road, Dist. Pune. 3. Matiram Yadhav, age 44 yrs.,, Nayeb Subedar No.JC-2038817, Unit No.1162, Midimum Battery Artilary Centre, Devlali, Devlali. 4. Nand Kumar Waze, age 35 yrs., Cipahi No.10150369, Unit No.109, Infrentry Battalien (T.A.) Maratha Infrentry Attachment Dehu Road, Dehu Road, Dist. Pune. ...RESPONDENTS. (Ori. accused). ... Smt. Y.M. Kshirsagar, A.P.P. for appellant/State. Shri Swanil S. Patil, Advocate for R.No.3. Shri A.C. Darandale, Advocate for R.Nos.2 and 4. Shri A.K. Tiwari, Advocate for R.No.1. ... 2 crapl116.01 CORAM: S.S. SHINDE,J. 18th FEBRUARY, 2011. PER COURT: 1. This appeal has been filed by the appellant State challenging the judgment and order of acquittal passed by the J.M.F.C. (Rlys.), Bhusawal in Reg. Cri. Case No.84/97, dated 8th December, 2000. 2. The facts of the case are extensively stated by the trial Court in paragraphs 2 to 13 of the impugned judgment. Therefore, the same are not repeated here. 3. The learned A.P.P. appearing for the appellant State on 9th May, 1997 the R.P.F. Constable Sk. Salim and another constable were on seal checking and guarding duty between 4 to 12 midnight in the Railway yard, Bhusawal. They saw accused No.1 near Line No.16, near 3 crapl116.01 C.Y.M. Office, carrying some heavy property in canvass bag. Accused No.2 was carrying property in gunny bag. On suspicion, they were stopped and they were interrogated. They could not give satisfactory reply. Both RPF constables checked the bags of the accused and they found one copper ingot in each bag. The matter was reported to Sub Inspector Dahake P.W.2 . The report was given in writing and the property was seized from possession of the accused No.1 and 2. According to prosecution, accused No.1 to 4 committed the theft of copper ingots from Railway wagon. Investigation was carried out. Confessional statements of the accused were recorded by R.P.F. and the accused admitted that they have committed the theft of copper ingots. Complaint was lodged, accordingly and after investigation, charge-sheet came to be filed and after trial, the trial Court acquitted the accused of the offences levelled against them. Hence, this appeal. 4 crapl116.01 4. The learned A.P.P. submitted that to prove its case, the prosecution examined in all ten witnesses including panch witnesses, who turned hostile. Apart from the evidence of the prosecution witnesses, reliance was placed on the confessional statements of accused persons, supplementary statements of accused, statement of P.W.10 Constable Patil, wagon checking panchanama, certificate regarding condition of wagon etc. The learned A.P.P. submitted that the impugned judgment and order of acquittal is contrary to the facts and evidence on record. The property stolen belonged to railway department. The trial Court ought to have considered that the accused were found in possession of the property, the stolen property was recovered from their possession and they had confessed the offence by giving confessional statements. The A.P.P. further submitted that the confessional statements are admissible in 5 crapl116.01 evidence and those are corroborated by recovery of the property from their possession. The accused could not give satisfactory explanation for possession of the property. The accused persons are military personnels, none of the accused has claimed ownership of the seized property. The defence witness V.P. Singh, Auto Rickshaw driver examined in this case was not at all believable but, undue importance has been given to this witness while appreciating the evidence by the trial Court. The A.P.P. further submitted that at midnight hours, it was not possible to expect any independent witness to the incident. The learned A.P.P., therefore, prayed that the appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal. 5. On the other hand, the learned Counsel for the respondents would submit that the appeal file by the State of Maharashtra itself is not 6 crapl116.01 maintainable u/s 378(2) of Cr.P.C. as before the trial Court the respondents were prosecuted for offence punishable u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and it was investigated by the Railway Protection Force constituted u/s 3 of the Railway Protection Act, 1957, which is a force constituted and maintained by the Central Government under the Special Act and it is not an offence under Indian Penal Code or investigated by local police under control of State of Maharashtra. The learned Counsel would submit that, in the light of above position, it is writ large that even before the trial Court the case was prosecuted by the Union of India through Railway Protection Force, Bhusawal, by their prosecutor. In this view, it is submitted that the State of Maharashtra has no authority to direct its public prosecutor to file appeal and prosecute the same. In support of their submissions, the learned Counsel for respondents placed 7 crapl116.01 reliance on the reported judgment of Honourable Supreme Court in case of Lalu Prasad Yadav and another vs. State of Bihar and another, reported in (2010) 5 SCC 1, wherein it is clearly held that neither State Government nor Central Government has any power over each other's public prosecutor to present an appeal. 8. The learned Counsel for respondents further submitted that even otherwise, considering the failure of the prosecution to prove the recovery panchanama and memorandum panchanama and the variance in the depositions of P.W.1, P.W.2 and P.W.10, as considered by the trial Court in addition to impossibility of stealing of the copper ingots in para Nos. 43 to 45 of the impugned judgment, it will be clear that the prosecution has miserably failed to prove the possession of the property with the respondents to attract the provisions of Section 3(a) of the Railway Property 8 crapl116.01 (Unlawful Possession) Act, 1966. The learned Counsel for respondents submitted that the respondents have been rightly acquitted by the trial Court and the appeal deserves to be dismissed. 7. I have given due consideration to the submissions of the learned Counsel for the parties. It is not in dispute that the panchas to the seizure panchanama have turned hostile. Though the learned A.P.P. submitted that the respondents have confessed the guilt before the RPF Officer, such confessional statements are not admissible in evidence. The Counsel for the respondents have brought to my notice the discussion in paragraphs 42 to 45 by the trial Court, whereupon it appears that the P.W.2 admitted in his cross- examination that sheet of said wagon was of 4 Inch width. Hence it is very difficult to believe the story that with the help of tie- bar accused persons extended the hole of said 9 crapl116.01 wagon. It is also pertinent to note that P.W. 4 who examined said wagon and found that 10x6 inch portion of said wagon was cut and P.W.8 deposed that copper ingots were of about 30 to 35 Kgs. each. Therefore, the trial Court held that in absence of any independent evidence, it is difficult to believe that such heavy ingots can be removed from the small hole of said wagon as alleged. 8. On perusal of the impugned judgment and more particularly, paragraphs 30, 31,44 and 45, in my opinion, the concerned Court has taken a possible view. I find considerable substance in the arguments of the learned Counsel appearing for the respondents that the State of Maharashtra was not competent to file appeal. 9. Therefore, for all these reasons, I do not find any substance in the matter to grant leave to appeal. 10 crapl116.01 10. Hence, appellant's prayer for grant of leave u/s 378(1)(3) of Cr.P.C. to file appeal against acquittal is rejected. Consequently, the appeal stands dismissed. Original record be sent back to the concerned Court forthwith. [ S.S. SHINDE, J ] ..... Kadam.