1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 140/2000 The Sub Inspector, R.P.F., Vikarabad. ...Appellant. Versus 1 Sk. Moossakhan Alias Pathan s/o Waheedullakhan, Age : 35 years, R/o Jajuwadi Mohalla, Parli Vaijnath, Dist. Beed. 2 Githe Tukaram s/o Shivajirao, Age : 20 years, R/o Malkapur, Tq. Parli, Dist. Beed. 3 Githe Sunil s/o Ramkishan, Age : 20 years, R/o Malkapur Tq. Parli, Dist. Beed. 4 Githe Arun s/o Niverthirao, Age : 29 years, R/o as above. 5 Seetaram Ganpath Sangale, Age : 45 years, R/o Ambeltek, Tq. Parli Dist. Beed. 6 Balu Kashinath Bhonsle, Age : 46 years, R/o Sakhwardi, Tq. Phaltan Dist. Satara. 7 Dada Laxman Kumbhar, Age : 26 years, R/o Sakhwardi, Tq. Phaltan, Dist. Satara. 8 Bhagwan Jadhav s/o Ramkrishna Jadhav, R/o Dongar Base Galli, Ghatnadur Dist. Beed. 9 Githe Babu s/o Githe Manaji, Age : 40 years, R/o Malkapur, Tq. Parli Dist. Beed. 10 Githe Baliram s/o Manaji, Age : 35 years, R/o Malkapur, Tq Parli Dist. Beed. ...Respondents. Shri S.N. Kendre, A.P.P. for appellant. Shri S.V. Mundhe, Advocate for respondents no.1 to 5, 8, 9, 10. Mr. S.V. Jadhav, Advocate for respondents No. 6 and 7. 2 CORAM : A.V. NIRGUDE, J Date : 06th October, 2010. ORAL JUDGMENT:- 1 The State has filed this appeal against the judgment and order of acquittal passed by learned Judicial Magistrate (First Class), Railways, Aurangabad in Regular Criminal Case No.146/1998. 2 The prosecution case in short be narrated as under. The complainant, who at the relevant time was working as Inspector of Railway Protection force at Vikarabad, received a 'source' information that the coal from railway wagons was being stolen. On 21/01/1998 at early hours, he caught red-handed the respondents No.1 to 7 near a Railway level crossing of Ambeltek village. The respondents No. 1 to 7 were found in possession of about 5 tonnes coal loaded in a truck bearing No. MTT-1998 belonging to the respondent No. 7. The prosecution witness No.1 the complainant immediately caused arrest of the respondents No.1 to 7 and recorded panchanama as well as their confessional statements. From the confessional statement of respondent No.1, the complainant learnt further that he had sold stolen coal belonging to the railways to the accused Nos. 8, 9 and 10. At the instance of respondent No.1, the complainant then went to the bricks-kilns of the respondents no. 8, 9 and 10 and found them possessing similar coal in their bricks kiln. The complainant recorded their confessional statements also. On the basis of these material, the complainant lodged his complaint before the above mentioned judicial officer. 3 Initially, the complainants deposition was recorded as evidence before charge on 5th March, 1999. On the very day, the learned Magistrate framed charge against all the respondents and thereafter on 07/05/1999 the learned Magistrate offered the prosecution witness No.1 -the complainant- to 3 the respondents for cross examining him. On that day, despite presence of all the respondents before the Court, except the respondent No.6 whose presence was exempted, the complainant was cross examined only by the respondent No.1. Other respondents did not offer any cross examination of this witness. Thereafter, the complainant recorded depositions of ten more prosecution witnesses. But except the prosecution witness No.5, no prosecution witness supported the complainant’s case. 4 The learned Magistrate acquitted the respondents mainly on the ground that the complainant could not prove his case because the material prosecution witnesses in whose presence the complainant had seized the stolen coal, did not support the prosecution case. He therefore, held that the prosecution had failed to prove the recovery of the coal from the custody of the respondents. The learned Magistrate brushed aside the deposition of prosecution witnesses No.1 and 5 saying that they were R.P.F. Inspector and would support each other. 5 The appeal is filed against impugned judgment of the learned magistrate. 6 The question that arose for my consideration is whether the prosecution could prove the case against the respondents? My answer to this is in affirmative only to the extent of respondents No.1 to 7. 7 Before I proceed with the discussion, one must keep in mind the provision of Section 3 of the Railway Property (Unlawful Possession) Act, 1946 [Henceforth referred as the Act]. Section 3 reads as under. “Penalty for unlawful possession of Railway property :- Whoever is found, or is 4 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 fie 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 offence, with imprisonment for a term which may extend to five years and also with fine and in the absence o 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. 8 In view of this peculiar provision, all that the prosecution has to prove is the accused is found in possession of any railway property, which is reasonably suspected of having been stolen or unlawfully obtained by him. On such proof, it is for the accused to prove that he had come in possession of the railway property lawfully. In this back ground, the learned magistrate was under obligation to examine and appreciate the prosecution evidence. 9 On perusal of the impugned judgment, I found that the learned Magistrate was probably not aware of this peculiar provision of the Act. It appears, he was neither aware that no sooner the prosecution could prove that the accused were found in possession of the railway property, which is reasonably suspected of having been stolen, it was for the accused to prove that they had obtained the property lawfully. The learned magistrate's approach to appreciate the prosecution case thus was grossly defective. Besides, he simply brushed aside the evidence of the prosecution witness Nos. 1 and 5 only because they are R.P.F. Inspectors thereby implying that they were interested in the prosecution case. There is nothing on record to show that they had any enmity with the respondents or had any oblique motive to falsely implicate the respondents in this case. 10 The prosecution witness No.1 the complainant very categorically 5 stated that when he received source information about theft of coal from railway wagons, he visited with his staff this particular spot where he thought, he will find thief of coal. As expected, at early hours in the morning, he found the accused Nos. 1 to 7 in possession of almost 5 tonnes of coal which was already loaded in the truck owned by the respondent No.7. This truck was found parked near an abandoned railway quarter where the stolen coal was found stored. The prosecution witness No.1 also stated that he immediately recognized the respondent No.1 being an ex-convict of similar crime. The complainant said that he and his party immediately detained these seven persons and then recorded their statements. He stated that he recorded their statements personally and in the cross examination, he also stated that he explained the contents of the confession to the respondents in Hindi. On perusal of the confession, I found that confessions are recorded in English and they are signed by the respondents as well as independent witnesses prosecution witnesses No.2 and 3. It is now settled law that an Inspector of railway protection force is not police officer as contemplated by Section 25 of the Indian Evidence Act and so the confessions of the respondents No.1 to 7 made to the prosecution witness No.1 are not hit by Section 25 of the Evidence Act. The prosecution witness No.1 has amply proved these statements. 11 The prosecution witnesses No. 1 and 5 have deposed that at early hours on that day, they pounced upon the respondents No. 1 to 7 when they had loaded large amount of coal in a truck. This place was not an usual place of the business in coal. The place where the respondents No.1 to 7 were apprehended was near level crossing where the goods trains are compulsory stopped for some time to check the brakes etc.. It has also come on record that this place is nearby thermal power station where coal is brought by Railway in open wagons. In addition to this, the respondents categorically 6 stated as to how they first committed theft of coal from the moving goods trains and they then stated as to how the coal was stored in an abandoned railways quarters. The respondents No.2, 3, 4 and 5 specifically stated that they had come to the spot as labours to load the coal in the truck. The respondent No. 6 admitted that he was the driver of the vehicle and was knowing the fact that the coal was stolen property and was being loaded in the truck which he would have taken away to the bricks-kiln belonging to the respondent No.7. The respondent No. 7 further admitted that he knew that the respondent No. 1 had agreed to sell the stolen property and he further admitted that he had gone to the spot stealthily, to collect the coal. He also said that he had on previous occasion, carried such coal to his bricks-kiln which is situated (far away) in district Satara. As regards the confessions, the respondents No. 2 to 7 have not denied having made such confessions. They did not cross examine prosecution witness No.1 at all. In their statements under Section 313 of Cr.P.C., they simply denied having made such statements. In these circumstances, it can certainly be said that the prosecution has proved that the coal which was found on the spot, in the possession of the respondents No. 1 to 7 was “suspected of having been stolen or unlawfully obtained”. In view of this presumption, it was for the respondents No. 1 to 7 to rebut this presumption and to prove at least on probability that they had procured the property lawfully. But they failed to do so. I am therefore, inclined to hold that the prosecution has proved its case beyond reasonable doubt against respondents No. 1 to 7 and they should be convicted under Section 3 of the Act. 12 As regards the respondents No. 8, 9 and 10, the prosecution evidence is not strong to raise the presumption that they possessed property which was suspected to have been stolen. These respondents were not found where the respondents No. 1 to 7 were found. They were found at their 7 respective places of business. They were also found in possession of coal but besides their own confessions, there is practically nothing to hold that the coal which they possessed was railway property. Therefore, they are entitled to the benefit of doubt. 13 Next question is what sentence should be imposed on the respondents No. 1 to 7. Respondents No.1 admittedly was an ex-convict of similar offence. So clause (b) of Section 3 of the Act will apply to his case. Clause (b) prescribes imprisonment for a term which may extend to five years and also with fine. It also provides that in absence of special and adequate reasons, such convict can not be awarded imprisonment of less than two years duration. Having regard to the act that this case is pending since 1999, I am inclined to award minimum prescribed sentence to the respondent No.1. 14 For the respondents No. 2 to 7, it appears, it is their first offence and as provided by Clause (a) with Section 3 of the Act, they are required to be directed to undergo rigorous imprisonment at least for one year with fine of Rs.1,000/- each in default they shall undergo rigorous imprisonment for one more month, because there are no special or adequate reasons for awarding lessor sentence to them. The pendency of the case since 1999 in my view, is not special or adequate reason to award to lessor sentence than the minimum prescribed. ORDER a) The appeal is allowed. b) Respondent No.1 is convicted for offence punishable under section 3(a) of the Railway Property (Unlawful possession) Act, 1966 and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/- in default, he shall undergo rigorous imprisonment for two months further. 8 C) Respondents No. 2 to 7 are convicted for offence punishable under section 3(a) of the Railway Property (Unlawful possession) Act, 1966 and sentenced to undergo rigorous imprisonment for one year with fine of Rs.1,000/- each, in default they shall undergo rigorous imprisonment for one more month. d) Respondents No. 8, 9 and 10 are acquitted of offence punishable under section 3(a) of the Railway Property (Unlawful possession) Act, 1966. e) Fine amount if recovered shall be paid to the Railway administration. f) The respondents No.1 to 7 are absent. Issue arrest warrants against them. [A.V. NIRGUDE, J.] ts k/ok