( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 85 OF 1999 The State of Maharashtra .. Appellant through Railway Protection Force, Bhusawal. Versus Surjeetsingh Mansingh Gujral .. Respondent Age. 46 years, R/o. Badri Plot, Jamner Road, Bhusawal, Tq. Bhusawal, Dist. Jalgaon. Shri B.V. Wagh, A.P.P. for the appellant. Shri S.L. Kulkarni, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 13.11.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the State being aggrieved by the acquittal of the accused/respondent in R.C.C. No. 67 of 1997, decided by the Judicial Magistrate, First Class, (Railways), Bhusawal, on 01.12.1998, whereby the respondent is acquitted of offence punishable under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as “Railway Property Act”). ( 2 ) 2. Brief case of the prosecution is as below:- . It is case of the prosecution that P.W.1-Vinodsingh Thakur, Naik in R.P.F. had gone to the saw mill of the accused on 20.05.1997 for enquiring about addresses of certain witnesses and at that time he saw some railway property in the premises. So, he informed about it to his superior Sub-Inspector Parihar of R.P.F. Thereafter, he filed report in writing. At about 4.30 p.m. P.S.I. Parihar along with staff went to the saw mill and found railway property, which was seized. The statement of the accused/ respondent was recorded. Ultimately complaint was lodged by P.W.1-Vinodsingh and initiated prosecution against the accused. 3. The learned Magistrate mainly acquitted the appellant/accused on two grounds. Firstly, no search warrant was taken as required by Section 11 of the Railway Property Act. Secondly, it is held that it is not proved that the property was found in possession of the respondent. ( 3 ) 4. Heard A.P.P. Shri B.V. Wagh for the appellant and Shri S.L. Kulkarni for the respondent/accused. They have taken me through the entire evidence and record. There is evidence of only two witnesses to show that railway property was found in the possession of the respondent/accused. P.W. 1-Vinodsingh Thakur is examined at Exh.10. He stated that he was working as Naik at R.P.F. Bhusawal. On 20.05.1997 he was in search of certain witnesses. He went to the saw mill of the accused for enquiring the addresses of the witnesses. There he saw railway property and accused Surjeetsingh was present in the saw mill. Thereafter, he gave report Exh.11 to his superior Sub-Inspector Parihar. In the cross- examination the witness said that he had not seen the accused/respondent prior to the incident and subsequently till the date of his deposition in the Court. He stated that the property was by the side of railway track. He does not know boundaries of the saw mill. 5. In the statement of P.W.4-Sub-Inspector Parihar, he said that on the information given by P.W.1-Vinodsingh Thakur, he reached the saw mill and seized the railway property. The accused has not claimed the property to be his ( 4 ) own. So, the question arises whether the property was found in the possession of the accused/respondent. 6. Section 3 of the Railway Property Act is as follows:- “3. Penalty for unlawful possession of railway property – 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 - (a) x x x x x (b) x x x x x” 7. So, the prosecution has to prove that the accused had been in possession of the railway property, which was reasonably suspected to be or having been stolen or unlawfully obtained property. In this case, Sub-Inspector Parihar in his statement did not say that he had personal knowledge that the saw mill was in occupation of the respondent. The property was found in a plot where there was saw mill and not inside the saw mill. No doubt, in his statement Sub-Inspector Parihar referred to the statement of the accused recorded by him at Exh.20, which according to him ( 5 ) was given by the accused/respondent voluntarily and on which the accused has signed. However, in the cross-examination, he admitted that the statement was not recorded in presence of panchas. There was no warning given to the accused that the statement would be used against him. He said that the statement is in his hand writing. It was suggested that the statement was not a voluntary statement. Unfortunate part is that the Magistrate did not put any question regarding said statement to the accused under Section 313 of Cr.P.C., as such no explanation is sought from him regarding the same. Therefore, said statement cannot be used against the accused. 8. The only document that is said to be against the accused is the property extract at Exh.21. It shows that one Mansingh was the original owner. After death of Mansingh, names of his four sons namely, Jaspalsingh, Kuldeepsingh, Narendrasingh and Surjeetsingh (accused/respondent) and name of widow of Jaspalsingh were recorded as heirs. So, this document does not show that the property was in exclusive possession of the respondent. On the other hand in para 1 of his deposition Sub-Inspector Parihar made out case of partition of property between Mansingh and his sons, but no ( 6 ) document to that effect was produced. There is no other document such as licence of saw mill or statement of independent witness regarding ownership and occupation of the saw mill. It is not that Sub-Inspector Parihar has any personal knowledge. 9. Taking into consideration all circumstances and in absence of any evidence to show that the property seized was in possession of the accused/respondent, as required by Section 3 of the Railway Property Act, the accused/respondent is entitled to benefit of doubt. In the circumstances, it is not a case where interference is required in the judgment and order of the Trial Court. Hence, the appeal is dismissed. The bail bond executed by the respondent stands discharged. [P.R. BORKAR,J.] snk/2009/NOV09/crap85.99