BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 28.10.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.A.No.130 of 2002 State : Inspector of Police, Railway Protection Force, Tondiarpet (Marshalling) Yard, Southern Railway, Chennai, Crime No.18/87. Rep by : Public Prosecutor, High Court, Madras. (Petitioner) .. Appellant / Petitioner Vs. Varghese, S/o.Paravath (accused) .. Respondent / Accused Prayer :- This appeal has been preferred under 378 of Cr.P.C., against the judgment dated 21.08.2001 in C.A.No.91 of 2000 passed by the learned Additional District Judge – cum- Chief Judicial Magistrate, Chengalpattu. For Appellant : Mr.J.C.Durai Raj, Government Advocate (Crl. Side) For Respondent : Mr.M.Ravi, Advocate JUDGMENT This appeal has been preferred against the decree and judgment in C.A.No.91 of 2000 on the file of the Additional District Judge – cum – Chief Judicial Magistrate, Chengalpattu, dated 21.8.2001, which had been preferred against the judgment in C.C.No.2247 of 1989 on the file of the Judicial Magistrate No.1, Poonamalli. The accused has been charged under Section 3(a) of the Railway Properties (unlawful possession) Act, 1966. (Act 22/1966). 2.The case of the prosecution is that on 26.8.1987, while P.W.1 was on his routine rounds on R.P.F. Marshalling Yard, Thandairyarpet, on suspicion he caught hold of the accused and on search he found two tyres and two tubes belonging to the Railways, besides he was https://hcservices.ecourts.gov.in/hcservices/ found in possession of a tricycle. Hence, the accused was charged under Section 3(a) of the Railway Properties (unlawful possession) Act, 1966. (Act 22/1966). Since the co-accused have admitted the offence, the said connected case in C.C.No.22 of 1988 was disposed on 9.3.1998 and thus the case has been separted from C.C.No.22 of 1988. After furnishing the copies of the documents under Section 207 of Cr.P.C., to the accused, the learned trial Judge has framed the charges and when questioned, the accused pleaded not guilty. 3.On the side of the prosecution, P.W.1 to P.W.24 were examined and Ex.P.1 to Ex.P.52 were marked. The accused has examined himself as D.W.1 and has exhibited Ex.R.1 and Ex.R.2. M.O.1 to M.O.3 were marked before the trial Court. 4.The learned trial Judge after going through the evidence both oral and documentary has come to the conclusion that the charge levelled against the accused has been proved beyond any reasonable doubt, had convicted the accused under Section 3(a) of the Railway Properties (unlawful possession) Act, 1966. (Act 22/1966) and sentenced to undergo one year RI and slapped with a fine of Rs.5,000/- in default to undergo one month SI. Aggrieved by the findings of the learned trial Judge, the accused has preferred an appeal in in C.A.No.91 of 2000 before the Additional Sessions Judge – cum – Chief Judicial Magistrate, Chengalpattu. The learned first appellate Judge after scanning the evidence both and after giving due consideration to the submissions made by the learned counsel for the appellant as well as the learned Additional Public Prosecutor, had allowed the appeal thereby set aside the judgment of the learned trial Judge in C.C.No.2247 of 1989, which necessitated the Government to prefer this second appeal. 5.The point for determination in this appeal is whether the offence under Section 3(a) of the Railway Properties (unlawful possession) Act, 1966. (Act 22/1966) has been attracted against the accused / respondent herein to warrant conviction under the said provision of law. 6.The Point:- Section 3(a) of the Railway Properties (unlawful possession) Act, 1966. (Act 22/1966) runs as follows:- 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)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 https://hcservices.ecourts.gov.in/hcservices/ 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 offence, 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. The property involved in this case is M.O.1(series) – 3 tyres and M.O.2(series) – 3 tubes. According to the prosecution, M.Os.1 & 2 (series) were not recovered from the accused in person, but were recovered on the confession of the accused. Section 27 of the Indian Evidence Act reads that Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as related distinctly to the fact thereby discovered, may be proved. 6(b)P.W.2 after obtaining Ex.P.11 – search warrant went to the premises belonging to one Rathinam Chettiar where he saw two new lorry tyres alongwith tubes and that the had seized two tyres under search list – Ex.P.12. P.W.1 had arrested the accused on 1.9.1989 at 2.45 pm and as recorded Ex.P.1 – confession statement of the accused and on the basis of the confession statement he alongwith witnesses went to the place where the accused had admittedly hidden the stolen articles viz. Types ie., a bush near Railway line electrical post NO.6/11. According to P.W.1 the said M.O.1 – tyres and M.O.2 – tubes were recovered in the presence of witnesses Mr.Rajan and Mr.Magimai Dass. The said Magimai Dass, who was examined as P.W.9 on the side of the prosecution, has failed to support the case of the prosecution. Hence, he was treated as hostile witness by the learned Additional Public Prosecutor. The other witness Mr.Rajan was not examined on the side of the prosecution. Under such circumstance, the alleged stolen articles M.O.1 to M.O.3 under Section 27 of the Indian Evidence Act, falls to the grounds. Further, as rightly observed by the learned first appellate Judge, there is no material placed before the trial Court to show that M.O.1 and M.O.2 belong to the Railways. The alleged purchaser of M.O.3 – tricycle has also not supported the case of the prosecution. As per the evidence of P.W.13 on the date of occurrence while he was on duty he saw three persons with three lorry tyres and tubes near Vinayagar Temple and he went and fetch the accused near the place where the three tubes were detained alongwith the material objections and when Thayalan blow the whistle the above said three persons ran away from the said place leaving the three tyres and three tubes, which were handed over to the accused. But there is no material placed to show that the above said M.O.1 and M.O.2 (series) were handed over to the accused by P.W.13, before the https://hcservices.ecourts.gov.in/hcservices/ recovery by P.W.1. The learned first appellate Judge, after meticulously going through the evidence both oral and documentary has come to the definite conclusion that the charge levelled against the accused under Section 3(a) of the Railway Properties (unlawful possession) Act, 1966. (Act 22/1966) has not been made out, and had acquitted the accused, which does not warrant any interference from this Court. Point is answered accordingly. 7.In fine, the appeal is dismissed confirming the judgment of the learned first appellate Judge in C.A.No.91 of 2000 on the file of the Additional District Judge – cum- Chief Judicial Magistrate, Chengalpattu. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssv To 1. The Additional District Judge Cum Chief Judicial Magistrate, Chengalpattu. 2. The Principal District Judge, chengalpattu. 3. The Chief Judicial Magistrate No.I Chengalpattu. 4. The Public Prosecutor, High Court, Madras. 6. The Inspector of Police, Railway Protection Force, Tondiarpet, (Marshalling Yard), Southern Railway, Chennai. 1 cc To Mr.M.Ravi, Advocate, SR.59731 CA.No.130 of 2002 BV(CO) SRA(4/11/2008) https://hcservices.ecourts.gov.in/hcservices/