IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 Crl.Rev.Pet.No. 1 of 2009() --------------------------- CRA.83/2006 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.47/2004 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- R.SURESH, S/O. RAVI, AGED 25 YEARS, KAKKARAVAYAL HOUSE, MANGOLPARA, P.O. IRINGAL,VADAKARA. BY ADV. SRI.K.M.JAMALUDHEEN SMT. LATHA PRABHAKARAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------- 1. INSPECTOR , RAILWAY PROTECTION FORCE, CALICUT, 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, JUDGE ------------------------------------------------- CRL.R.P.NO. 1 OF 2009 -------------------------------------------------- Dated this the2nd day of January, 2009 O R D E R Revision petitioner, the accused in C.C.47 of 2004 on the file of Chief Judicial Magistrate, Kozhikode, was convicted and sentenced for the offence under section 3(a) of Railway Property (Unlawful Possession) Act, 1966 challenged the conviction before Sessions Court, Kozhikode in Crl. Appeal 83 of 2006. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard. 3. The argument of the learned counsel is that the Courts below did not properly appreciate the evidence and when PW3, the independent witness, turned hostile to the prosecution and deposed that though his signature is there in Ext.P1 mahazar, at the time when he put his signature therein it was a blank paper, Courts below should not have accepted the evidence of PW1, the official witness, to hold that the mahazar was prepared after seizing MO1 series from the CRRP 1/2009 2 revision petitioner. It was argued that when the evidence of PW1 is that it was at his oral request PW2, the Engineer conducted inspection of MO1 series of ABC Plates and certified that it is Railway property, evidence of PW2 contradicts the version of PW1 and these aspects were not properly appreciated by the Courts below. Learned counsel argued that on these materials, Courts below should not have found that revision petitioner was in possession of MO1 series of Railway property. Learned counsel also argued that when questioned under section 313 of Code of Criminal Procedure, revision petitioner specifically contended that he was arrested from his house at 2.30 a.m. in the night on the allegation that there is a case pending against him of committing theft of Railway property and evidence of DW1, brother of revision petitioner, fortifies that defence case and Courts below were not justified in not relying on the evidence of DW1 on the ground that he is an interested witness and the conviction is not sustainable. Finally, learned counsel submitted that the sentence awarded is excessive as revision petitioner is a first offender and in any case he should have been granted the benefit under Probation of Offenders Act. Learned counsel also argued that Courts below should not have relied on Ext.P2 confession statement, without corroborative evidence. 4. On hearing the learned counsel and going through the CRRP 1/2009 3 judgments of the Courts below, I find no reason to interfere with the conviction. Though PW3, an independent witness to Ext.P1 mahazar, turned hostile to prosecution, as he deposed that while he affixed his signature on Ext.P1 it was a blank paper, Courts below, on proper appreciation of evidence, found that PW3 has not deposed the truth. I find no reason to differ with the view taken by Courts below. PW1, though an official witness, on proper appreciation of evidence was found to be a credible and reliable witness by the trial Court as well as the Appellate Court. 5. Fact that PW1 is an official witness by itself is not a ground to discard his evidence or to view his evidence with suspicion. Though learned counsel vehemently argued that evidence of PW1, when his version that PW2 issued a certificate after inspection on his oral request was contradicted by PW2 and also for his version that he had affixed seal on MO1 series at the time of seizure which was not corroborated by the entries in the property list produced before the Court, I find these aspects not sufficient enough to disbelieve PW1. The Courts below had appreciated the evidence of PW1 in the proper perspective and found his evidence credible and reliable. The evidnece of PW1 establish that revision petitioner was carrying MO1 series of ACB Plates, which exclusively belongs to Indian Railways and which could not have been procured by revision petitioner from CRRP 1/2009 4 outside on that night enclosed in MO2 polythene sack. Though it was argued that MO2 is not a bag but a sack as admitted by PW1 at the time of evidence, evidence of PW1 establishes that MO1 series of ACB Plates were carried in MO2 sack and finding suspicious PW1 intercepted the revision petitioner and opened MO2 and MO1 series of Plates were found to be Railway property. Even if Ext.P2 confession statement is not relied on , if the evidence of PW2 corroborated by the evidence of PW1 is acceptable and reliable, there is sufficient evidence to prove that revision petitioner was carrying MO1 series of ACB Plates which are Railway property in MO2 on that fateful night. Added to this, Ext.P2 confession statement made by revision petitioner corroborates the evidence of PW1. On these evidence I find no reason to interfere with the findings of fact. Evidence establish that revision petitioner was in possession of MO1 series of ACB Plates. In such circumstances conviction of revision petitioner for the offence under section 3(a) of Railway Property (Unlawful Possession) Act, 1966 is perfectly legal. 6. Then the question is regarding the sentence. Sentence provided for an offence under section 3(a) of Railway Property (Unlawful Possession) Act, 1966 is imprisonment which may extend to five years or fine or both. But in the absence of special and adequate reasons, sentence of imprisonment shall not be less than one year and CRRP 1/2009 5 fine shall not be less than one thousand rupees. Learned Magistrate awarded a sentence of imprisonment for one year, which was the minimum imprisonment provided, in the absence of special and adequate reasons. Argument of the learned counsel is that as the revision petitioner is a first offender, it is a special and adequate reason as provided under clause (a). But it is not a special or adequate reason sufficient for awarding a lesser sentence as provided under section 3(a) of Railway Property (Unlawful Possession) Act, 1966. Though learned counsel argued that revision petitioner is to be granted the benefit of Probation of Offenders Act, considering the nature of the offence I find that Courts below rightly did not grant benefit of Probation of Offenders Act to the revision petitioner. There is no merit in the revision. Revision is threfore dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb