Crl.A. 311/2004 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL JUDGMENT AND ORDER (Oral) This appeal is directed against the judgment and order dated 9.6 .2004 passed by the learned Special Railway Magistrate, Guwahati in CR Case No. 7 of 2001 , whereby the learned Magistrate has acquitted five out of six accuse d persons from the offence U/S 3 of the Railway Properties (unlawful possession) Act, 1966. The accused No.1, Jatin Das has, however been convicted for the afo resaid offence and he has been sentenced to undergo rigorous imprisonment for tw o years and fine of Rs,10,000/-. As informed to this court, the convicted person Sri Jatin Das has filed an appeal and the said appeal is pending before the cou rt of learned Sessions Judge. In this way, I am only examining the legality and correctness of acquittal of remaining accused persons. Being aggrieved with the acquittal of five accused persons the Railway has filed this appeal. 2. Heard Mr. S.Goswami, learned counsel for the Railway and Mr. A.K .Bhuyan, learned counsel appearing for the respondents No. 1 and 4 and Mr. T.Isl am, learned counsel appearing for respondents No.2,3 and 5. I have also perused the impugned judgment and evidence on record. 3. The appellant’s case is that the accused No.1 Sri Jatin Das had purchased scrape iron materials from the Railway and on 27.2.2010 he had take n part delivery of the scrape materials purchased by him under memo dated 22.2.2 001. The goods were loaded in truck bearing registration No.AXA 502 for transpo rtation. 4. Within a short time of the truck leaving the yard the Railway officials got an information that some excess materials were loaded in the truck and taken away from the Railway Yard. Hence the truck was intercepted at Motgho ria, Guwahati and the truck was taken to Railway Yard and the goods were unload ed. Thereafter the scrape materials i.e. unserviceable rails were measured and i t was detected that 51.38 rm of rails was found in excess and it came to 1.529 MT in weight. 5. Accordingly, an FIR was lodged to the Officer-In-Charge, RPF, Gu wahati and after investigation offence report was submitted on 1.1.2002. 6. During the course of trial the prosecution examined altogether 1 1 witnesses and on the basis of the prosecution evidence the accused No.1, Jatin Das has been convicted. 7. The acquitted accused persons are the driver, handyman and emplo yees of the Railways, who were deputed to the Railway Yard for delivery of aucti on materials. Sri Goswami, learned counsel for the Railway submitted that while giving confessional statements by Sri Jatin Das to the Enquiry Officer, he had a dmitted that Railway persons (accused Nos. 4,5 and 6) were present at the site o f delivery and they did not object for taking excess materials. In this regard, Sri Bhuyan, learned counsel for the respondents submitted that if the statement is given before a RPF personnel by an accused it would hit by section 25 of the Evidence Act. Since an appeal by a convict is pending consideration before the learned Sessions Judge, it would not be proper to express any opinion about the admissibility of alleged confessional statement by Jatin Das. In other words, I am confine myself about the existence of sufficiency of incriminating evidence against the acquitted persons. 8. As could be gathered from the record, P.W.5 has deposed that at the relevant time he was in charge of delivery of the railway materials. P.W.5 further deposed that due to late report of his successor Sri D.Chakraborty, he had returned to his Quarter for lunch and before his coming back to the place of delivery, goods were already loaded in the truck. This witness is totally silen t that the excess goods were loaded in conspiracy with the accused Nos. 4,5 and 6 or that the driver and handyman of the truck had intentionally loaded the exce ss materials. P.W.11 is another witness, who was responsible for supervising the delivery of goods. This witness has also deposed that 309.14 RM : 9.200 MT of g oods were delivered in his presence. This witness is totally silent to speak as to how the excess quantity of 51.38 RM of rails was loaded in the truck. The te stimony of remaining witnesses relates to interception of the truck, weighing of the goods and about remaining formalities in the prosecution. In this way, I d o not find any conclusive evidence against the driver, handyman and railway empl oyees. I am also of the view that if railway employees were negligent in perform ing their duties more particularly to supervise the loading of auctioned goods, they can be adequately punished by way of administrative action. At this stage, Sri T Islam, learned counsel appearing for some of the respondents submitted tha t administrative enquiry was also conducted and the Railway employees have alrea dy been discharged. 9. In the case of Chandrappa and ors-vs- State of Karnataka, repor ted in (2007)4 SCC 415 and relied in the case of Valson -Vs- State of Kerala (2 008 AIR SCW 5203), it has been held that in case of acquittal by the trial court there is double presumption in favour of the accused. The first presumption of innocence is available to such persons under the fundamental principle of cri minal jurisprudence and the second principle is secured by way of acquittal. Be sides this, it has also been held that the appellate court should be slow in int erfering with the acquittal if two reasonable conclusions are possible. In the c ase before me, no witness has specifically involved the respondents for stealin g scrape materials. 10. In the result, the criminal appeal stands dismissed. 11. Registry is directed to return the LCR with a copy of this judgm ent to the learned Sessions Judge, Kamrup at Guwahati where in connection with C riminal Appeal No. 36 of 2004 .