1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION APPLICATION NO. 4217 OF 2009 The State of Maharashtra. ... Applicant. V/s. Atmaram Sakharam Patil & Anr. ... Respondents. Mr. A.T. Javeri for the Applicant. Mr. B.G. Tangsali with Jaydeep Pandey i/b. R.P. Loke for Respondents 1 and 2. CORAM : S.C. DHARMADHIKARI,J. DATED : 04th JANUARY 2010. P.C. :- This is an application for leave to file appeal against the order of acquittal recorded by the Court below. 2. The learned J.M.F.C., Railway Court, Kalyan, by the order under challenge delivered on 31st December 2008 acquitted Accused Nos.1 and 2 for the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act. 3. Section 3 of the Act reads thus :- “3. Penalty for unlawful possession of railway property - 2 Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawful obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable - (a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees; (b) for the second or a subsequent office, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees.” 4. The learned Trial Judge on a analysis of the entire evidence on record has come to a conclusion that the prosecution has failed to establish and prove the essential ingredients of the offence viz. the property allegedly seized is a railway property and that it was in possession of the 3 accused on the basis that it is stolen or unlawfully obtained by them. In other words, the essential ingredients for the penalty is whoever is found, or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained can be punished, unless he proves that the railway property came into his possession lawfully. 5. With the able assistance of the learned A.P.P., I have perused the deposition of the R.P.F. Inspector Amarjeet Singh Kahal. 6. Although, the learned A.PP would urge that the prosecution witnesses have been consistently stating that the property is a railway property and bearing the mark/seal of the railway yet, from the deposition of this witness itself, it is apparent that he has not been able to establish that the property is a railway property. This evidence is analysed in paragraph 8 of the impugned order and I do not find any infirmity therein. More so, as it has come in the statement of this very witness/employee of the railway that old railway wooden sleepers are sold in auction to the railway employees by the Railway Authorities. Further, in the subsequent paragraphs of the Judgment, the learned Judge has referred to the railway mark and has rightly contended that the prosecution has not produced the theft memo, stock register of the articles. The contradictions in the deposition of witnesses examined by the prosecution including P.W. 8 is 4 enough to conclude that the prosecution has failed to establish the necessary ingredients of the provisions carving out the offence. The view taken by the Trial Court is based on the evidence adduced and cannot be said to be perverse so as to call for any interference in the Appellate Jurisdiction of this Court. Consequently, the Application is dismissed. (S.C. DHARMADHIKARI,J.)