THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRL.R.C.No.1853 of 2004 JUDGMENT: This criminal revision case is directed against the judgment of the learned Metropolitan Sessions Judge, Vijayawada, in Crl.A.No.230 of 2003 dated 28.07.2004 confirming the conviction and sentence of fine of Rs.500/-, in default, simple imprisonment for a period of three months, for the offence punishable under Section 3 (a) of the Railway Property (Unlawful Possession) Act, imposed against the revision petitioner- accused by the learned VII-Metropolitan Magistrate for Railways, Vijayawada., in C.C.No.38 of 2002 dated 21.10.2003. Brief facts of the case are that on 11.10.2001 at about 11.55 A.M. the complainant along with his staff proceeded to Wynchipeta bridge, Vijayawada and found the accused was in possession of a rexine bag and on enquiry, he has confessed that he has committed theft of the railway rexine cloth from a passenger coach and that he made that rexine cloth into a bag and further on verification of the same, they found 1 K.G of Dhal and that the accused further confessed that he along with others have committed theft of 24 Nos. of railway bridge bed plates and 6 Nos. of CST-9 plates. The complainant arrested the accused and seized the material in the presence of mediators under the cover of a panchanama. Thereafter, with regard to theft of rexine cloth is concerned, a case in Cr.No.8 of 2001 under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 was registered against the petitioner-accused and the same was numbered as C.C.No.38 of 2002. With regard to theft of 24 Nos. of railway bridge bed plates and 6 Nos. of CST-9 plates are concerned, another case in Cr.No.6 of 2001 under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 was registered against the petitioner-accused and other accused and the same was numbered as C.C.No.46 of 2002. Though the petitioner- accused and others were convicted and sentenced by the trial Court in C.C.No.46 of 2002, but in appeal the appellate Court set aside the said conviction and sentence and acquitted the petitioner-accused and others. The prosecution has examined P.Ws.1 to 4 and got marked Exs.P1 to P7 and M.Os.1 and 2 to prove the guilt of the accused. On perusal of the entire evidence, both oral and documentary, the trial Court found the revision petitioner-accused guilty of the offence punishable under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 and accordingly convicted and sentenced him as stated supra. In an appeal preferred by the revision petitioner-accused against the said conviction and sentence, the learned Metropolitan Sessions Judge, Vijayawada, confirmed the conviction and sentence recorded by the trial Court. Aggrieved by the same, the revision petitioner-accused preferred this criminal revision. The main contention of the learned Counsel for the petitioner- accused is that there is absolutely no evidence to establish that there was theft of rexine cloth and in support of the said contention he has drawn my attention to the evidence of P.W.2. Heard the learned Counsel for the Additional Public Prosecutor. In the instant case P.W.2, the then Section Engineer in Carriage and Wagon Department, Vijayawada, has stated in his cross- examination that Duggirala railway yard is within Vijayawada railway jurisdiction and that he did not receive any theft report about the missing of rexine cloth from any Coaching Department in his jurisdiction. When once there is no report with regard to theft of said rexine cloth, in my considered view, the petitioner-accused cannot be said to have committed the theft of said rexine cloth. As per Section 3(a) of Railway Property (Unlawful Possession) Act, it shall be established by the prosecution that the property which was seized is the property belonging to the railways and that it should reasonably be suspected of having been stolen or unlawfully obtained by the accused. In the instant case, the prosecution has failed to establish the essential ingredients of Section 3 (a) of Railway Property (Unlawful Possession) Act. Hence, this Court is of the view that the trial Court as well as the appellate Curt erred in holding that the petitioner-accused is guilty of the offence punishable under Section 3 (a) of Railway Property (Unlawful Possession) Act. The Criminal Revision Cases is accordingly allowed and the conviction and sentence of fine of Rs.500/- imposed against the petitioner-accused by the trial Court for the offence punishable under Section 3 (a) of Railway Property (Unlawful Possession) Act., as confirmed by the appellate Court, are hereby set aside and the petitioner- accused is acquitted of the said offence. Fine amount paid by the petitioner-accused shall be refunded to him. _____________________________ (GOPALA KRISHNA TAMADA, J) 24-02-2011 Gsn.