1 cr-apln-1553-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 1553 OF 2010 The State of Maharashtra ..Applicant Vs. Mahendrakumar Vasudev Jayswal and Anr...Respondents .... Mr. S.A.Shaikh APP for Applicant-State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : SEPTEMBER 30, 2010 ORAL ORDER: 1 Leave to amend granted. Amendment to be carried out forthwith. The applicant-State of Maharashtra has challenged the judgment and order of acquittal dated 27.4.2009 passed by the learned Judicial Magistrate F.C. Railway Court, Kalyan in C.C. No. 40 of 1999 whereby, he acquitted the respondents-accused under sections 3(A) of the Railway Property Theft (Unlawful Possession) Act. 2 The case of the prosecution briefly stated is that six latching chains of the railways were stolen. Memo in respect of theft of six latching chains was received from Senior Inspector on 26.1.1999 by the complainant Shri. Ramchandran, Police Inspector. During the course of 2 cr-apln-1553-10 inquiry, he learnt that the stolen railway property was in the truck bearing registration No. MH-03-1810. The said truck was parked at Sanjay Gandhi Nagar, Ulhasnagar. Hence, he along with other staff members went to the spot. Next day, when the truck was unloaded, they found railway property in the truck. They seized the property in presence of panchas. The truck driver i.e. respondent no.1 came to be arrested. During interrogation he informed them that the seized truck belonged to respondent no.2. After completion of investigation, the charge sheet came to be filed. 3 I have heard the learned APP for the applicant-State of Maharashtra. I have perused the judgment and order passed by the learned Magistrate. I have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, I am of the opinion that the judgment and order passed by the learned Magistrate does not call for any interference. 4 For establishing the offence, the prosecution has examined nine witnesses. PW 1 Shri. Ramchandran is the Inquiry Officer. He is also the complainant in the present case. He stated that he received memo in respect of theft of six latching chains. During the course of enquiry he learnt that the stolen railway property was in the truck bearing 3 cr-apln-1553-10 registration No. MH-03-1810. The said truck was parked at Sanjay Gandhi Nagar, Ulhasnagar. Hence, he along with other staff members went to the spot. Next day, when the truck was unloaded they found railway property in the truck. They seized the property in presence of panchas. However, in the cross examination this witness has stated that he merely received memo in respect of theft. In his cross-examination he has admitted that he had not gone to the place of the incident and that he had not drawn the panchnama at the place of the incident. It is also pertinent to note that not a single latching chain was found in the truck. 5 The evidence of PW 3 Jagdish who is the Sub-Inspector of Railway Protection Force is on the same lines as that of PW 1 Ramchandran. 6 PW 2 Yadav is the panch witness to the unloading of the property from the truck and seizure of the property. From his cross examination, it is clear that he is a habitual panch as he stated that he has given evidence as panch witness 4 to 5 times earlier. Hence, the trial Court has rightly not relied upon the evidence of this panch witness. 7 PW 4 Pande is the second panch witness. His evidence also cannot be relied upon because he has stated that he had seen the seized muddemal for the first time in the Court. 4 cr-apln-1553-10 8 PW 5 Saxena is a Senior Circle Engineer. He stated that he was the person who had given the theft memo in respect of theft of six latching chains to PW 1 Ramchandran. In his cross-examination, he stated that he had not checked the Register maintained for the property of the Railway. He did not know as to when the railways purchased the said latching chains. It is pertinent to note that the memo is in respect of theft of six latching chains, however, no latching chain was found in the truck. Therefore, the evidence of this witness does not help the prosecution. 9 PW 6 Ranjeet Singh is a member of the Railway Protection Force. Truck was inspected in his presence. He was deputed to watch over the truck. He has stated that the truck was of sky blue colour which is not in consonance with the evidence of other witnesses. Though he was deputed to watch the truck, and hence was near the truck for a number of hours he has given a different colour of the truck, moreover, he could not state the make of the truck. There is discrepancy between his deposition and other witnesses on important points. Therefore, the trial Court was right in holding that his deposition cannot be relied upon. 10 PW 7 Bhau Janrao inspected the property seized from the truck and gave a certificate to the effect that the said property belongs to the railways. However, in his cross-examination, he admitted that there 5 cr-apln-1553-10 was no mark “I.R. ” or “C.R. ” of the railways on the seized property. He had not conducted any test on the said property in order to verify whether the property belongs to the Railways or not. He has also admitted that Railway did not manufacture any property but got it manufactured from other companies. From the evidence of this witness, it cannot be said that the prosecution has established beyond reasonable doubt that the seized property belonged to the railways. 11 PW 8 Jitendra Mishra who was present at the time of seizure of the property, has stated that the seized truck had tarpaulin cover. However, no other witness has stated so in their deposition. Further this witness could not state the colour of the truck nor is he able to depose on any material aspects relating to the truck. 12 Lastly, prosecution has examined PW 9 Anil Kumar Punjabi who stated that on inspection of the property, he gave a certificate that the seized property belonged to the railways. However, he has not given any documentary proof to show that the seized property belonged to the railways and hence, the learned Magistrate has rightly not considered his deposition. 13 The prosecution case is that six latching chains were stolen but no latching chain was found in the truck. As far as the property seized from the truck is concerned, there is no concrete material to show 6 cr-apln-1553-10 it belonged to the railways. There is also no material to show any such property was stolen from the railways at any time. 14 The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different plausible view may arise on the evidence. It has been so observed by the Supreme Court in K.Ramakrishnan Unnithan Vs. State of Kerala, AIR 1999 SC 1428. 15 So also, the Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. 16 From the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. Hence, I am not inclined to interfere in the judgment and order of acquittal. 17 In view of the above, application for leave to file appeal, is rejected. [ SMT. V.K.TAHILRAMANI, J.]