Rajnandgaon, Chhattisgarh v. Union of India General Manager South East Central Railway Bilaspur, Chhattisgarh --- R
Case Details
1 / 13 2025:CGHC:21800 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Judgment Reserved on : 03.04.2025 Judgment Delivered on : 09.05.2025 CRR No. 1342 of 2024 1 - Vinod Maratha @ Vinod Raj Chouhan S/o Subhaliya Chouhan Aged About 45 Years R/o Chandra Colony, Thana Basantpur, District : Rajnandgaon, Chhattisgarh. 2 - Radheshyam Yadav S/o Baleshwar Yadav Aged About 45 Years R/o Mamta Colony, Panchsheel Nagar, Gali No. 5, Santosh Residence Thana Lalbagh, District : Rajnandgaon, Chhattisgarh. --- Applicant(s) versus Union of India General Manager South East Central Railway Bilaspur, Chhattisgarh --- Respondent(s) CRR No. 1371 of 2024 Ramesh Koshle S/o Hemlal Koshle Aged About 27 Years R/o Jhopdapara, Baikunth, Police Station And Tahsil - Raipur, District Raipur Chhattisgarh -- --Applicant(s) Versus Union Of India Through R.P.F. Post Bhatapara, District Balodabazar Chhattisgarh. --- Respondent(s) 2 / 13 For Applicants : Mr. TK Jha, Advocate. For Respondent : Mr. Ramakant Mishra, DSGI. Hon'ble Shri Justice Arvind Kumar Verma CAV Judgment 1. As the above two criminal revisions arise out of the same incident, they heard together and decided by this common order. 2. Challenge in Criminal Revision No.1342/2024 is to the judgment dated 19.11.2024 passed by learned 9th Additional Sessions
Legal Reasoning
Judge, Raipur in Criminal Appeal No.06/2022, thereby affirming the judgment of conviction and order of sentence dated 22.12.2021 passed in Criminal Case No.6777/2013 by which learned Special Railway Magistrate, Raipur has convicted the applicants herein for commission of offence punishable under Section 3(A) of the Railway Properties (Unlawful) Possession Act, 1966 and sentenced them to undergo RI for 1 year with fine of Rs.1,000/-, plus default stipulation. 3. Challenge in Criminal Revision No.1371/2024 is to the judgment dated 19.11.2024 passed by learned 9th Additional Sessions Judge, Raipur in Criminal Appeal Nos.81/2020, thereby affirming the judgment of conviction and order of sentence dated 22.1.2020 passed in Criminal Case No.6777/2013 by which learned Special Railway Magistrate, Raipur has convicted the applicant herein for commission of offence punishable under Section 3(A) of the 3 / 13 Railway Properties (Unlawful Possession) Act, 1966 (for short ‘the Act of 1966’) and sentenced him to undergo RI for 1 year with fine of Rs.1,000/-, plus default stipulation. 4. Case of the prosecution, in brief, is that pursuant to receipt of information by Security Force, Bhatapara regarding theft of railway line stacks (60 Kg, total length 317.20 meters worth Rs.4,97,380/-) in between Kilometer Number 750/27-29, Nipaniya- Bhatapara, the Senior Section Engineer (Rail Track), Bhatapara lodged complaint in RPF Post, Bhatapara on 15.3.2013, based upon which crime bearing No.60/2023 for commission of offence punishable under Section 3(A) of the Act of 1966 was registered against unknown persons. On 20.6.2013, during patrolling, when the team of RPF Post Bhatapara reached near the pond situated in between Silyari-Mandhar, they saw some persons running away. On suspicion, the patrolling party intercepted them and caught one person namely Ramesh Kumar Koshle, out of them. On enquiry, he told that the persons managed to flee were eight in numbers. He also told name of two accused persons i.e. Lokesh Manhare and Santdas Satnami. When he was enquired about the railway track lying on the spot, he disclosed that he and his associates had brought the same from near the pond and they were waiting for truck, which was to be brought by accused Vinod Maratha and Radheshyam from Raipur, in which stolen railway tracks were to be loaded. Accused Ramesh Kumar Koshle further disclosed that at the instance of co-accused Vinod Maratha and 4 / 13 Radheshyam and out of greed, about three months ago they had cut railway truck near Nipaniya Railway Station, loaded it in the truck and were going to Raipur to unload the same. While transporting the same to Raipur, Vinod Maratha stopped the truck between Mandar and Silyari and instructed them to unload the stolen railway lines, which was subsequently hidden in the pond. Total 317.20 meters of railway lines was seized from the possession of the accused/Ramesh Kosle and he failed to produce any valid documents regarding the stolen property. Based upon the seizure, applicants were arrested in the aforementioned crime/offence. 5. On completion of investigation, challan/charge sheet was filed against the applicants based upon which, trial Court framed the charge against them. 6. The prosecution in order to prove its case examined as many as 16 witnesses, whereas the applicants-accused in support of their defence not examined any witness. Statement of Applicants (accused) were recorded under Section 313 of CrPC in which they denied all incriminating evidence appearing against them, pleaded innocence and false implication. 7. After hearing learned counsel for the parties and appreciating the evidence/material available on record, the trial Court convicted and sentenced the applicants/accused, which was affirmed/confirmed by learned Session Court. Hence this appeal. 8. Learned counsel for the applicants submits that the impugned 5 / 13 judgment is per se illegal and contrary to the evidence available on record. PW-3/Rajesh Verma (RPF) in his evidence has specifically stated that on the date of alleged incident, railway lines/property has not been seized from the present applicants. Learned Court below have convicted the applicants solely on the basis of confessional statements made by the accused persons before the RPF Officials. It is an admitted position that no public witnesses have been involved in this process. If the accused persons wants to make a confessional statements, the same should be recorded in the presence of two respectable and independent witnesses who should also be required to affix their signature thereon. They should also be produced before the learned Magistrate of competent jurisdiction and the confession shall be recorded by such Magistrate as per the relevant provisions of the CrPC. In the present case, IO has made the seizure in the presence of the police officers and not in the present of any independent witness, therefore, seizure is doubtful. Seizure witnesses have turned hostile and not supported the case of prosecution. There are many contradictions and omission in the evidence of the prosecution witnesses, which are not considered by the Court below. As the statement/confessional statement of the accused person has been recorded by the Railway Police Force, therefore, said evidence is not reliable as the RPF is the Police Officer. As per the prosecution case, the Inspector RPF Rajesh Verma PW -3 had seized the 6 / 13
Legal Reasoning
DMTR register no. 45, page 95, from the office Superintendent Mr. Girdhari Lal, but Girdhari Lal has not been examined. Since, the prosecution has not been proved its case beyond all reasonable doubt, the applicants/accused may be acquitted from the aforementioned charges/offence. In support of his contention, he places reliance upon the decision of Delhi High Court in case of State/Railway Protection Force versus Raju, LAWS (DLH) 2014 2 279 (CRL. LP No.182/2013); decisions of Bombay High Court in cases of State of Maharashtra Versus Rampal & Ors, 2008 ALL MR (Cri) 2465 and State of Maharastra versus Balaji Manikrao Jadhav, LAWS (BOM) 2016 1 220 and also the decision of Hon’ble Supreme Court in case of State of Maharashtra versus Vishwanath Tukaram AIR 1979 SC 1825. 9. On the other hand, learned counsel for the respondent opposes the submissions of counsel for the applicants and would submit that based on material/evidence available on record, trial Court has rightly convicted and sentence the applicants and same was also affirmed/confirmed by the learned Revisional Court. Hence, present revisions being sans merits are liable to be dismissed. 10. Heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 11. It is pertinent to mention here that on 20.06.2013, RPF Inspector Rajesh Verma and his team, during night patrolling has apprehended one of the accused/Rakesh Kumar Kosle (applicant 7 / 13 in CRR/1371/2024) alongwith various pieces of railway articles/ lines and he also reveals the names of main accused i.e, Vinod Maratha @ Vinod Raj Chouhan and Radheshyam (Applicants/accused in CRR No.1342/2024), under whose instruction he alongwith his accomplices (other co-accused persons) were loaded the stolen railway articles/lines in the truck for transportation. Accused/Ramesh Kosle has also identified two other co-accused persons involved in the alleged crime/offence i.e, (Lokesh Manhare and Santdas Satnami Kosle), who were also convicted and sentenced by the trial Court under Section 3(A) of the Railway Property (Unlawful Possession) Act. Further, on the instance of the accused/Ramesh Koshle, pieces of railway lines has been recovered from the pond, which is stated to be hidden by the accused persons. 12. There are three vital ingredients to prove commission of offence under Section 3 of the Act of 1966 - (a) The property in question must be railway property; (b) the possession, misappropriation or theft of such property must be proved against the accused, (c) such possession must be unlawful. 13. In so far as the first ingredient is concerned, the fact of exclusive ownership of the pieces of railway track by the Railways has been proved by the evidence of PW-3 Rajesh Verma and PW-2 S.N. Dwivedi. PW-3 has stated that he had issued memo of Ex.P-26 to the authority concerned for examination of the property seized in the case and pursuant thereto, PW-2 had issued certificate dated 8 / 13 2.8.2013 (Ex.P-6). PW-2 has stated in his evidence that he had received rail track pieces of different sizes weighing 60 kilogram for examination, which were seized in connection with offence under the Act of 1966. After examination, he has given certificate of Ex.P- 6 which bears his signature. This witness has deposed that on the basis of his work experience and after examination of the stolen property, he has found that said pieces of railway tracks are the property of the Railways, which is not available in the market. Certificate given by this witness is Ex.P-6. Hence, it stands proved that the property seized in the matter is pieces of railway tracks which were removed from the exclusive possession of the Railways. 14. As regards the second ingredients, the applicants were reasonably suspected of having stolen and obtained pieces of railway track which fact is evident from the seizure list as well as the confessional statement of applicant Ramesh Koshle who in clear crystal term made confession that he along with other co- accused persons had committed theft of Railway track in the section between Kilometer No.750/27-29 Nipaniya & Bhatapara; they had concealed the same near the pond situated in between Silyari-Mandhar and on the date of incident, they were waiting for the truck to load the pieces of railway track for its transportation to Raipur. 15. PW-3/Investigating Officer (Inspector Rajesh Verma) in his Court evidence has stated that on 14.03.2013, he received information 9 / 13 from the S.S.E, Railway about theft of stack of railway lines (weighing 60 kg, total length 317.20 meters) from kilometer number 750/27-29 between Nipania Bhatapara. On the same date, Sub Inspector Vikas Kumar (PW-4), Sub Inspector R.K. Singh (PW-13) and S.S.E. Kamlakar Satdave (PW-1) inspected the spot and confirmed that the railway lines was stolen from the spot. On 29.06.2013, while he alongwith his team were on patrolling duty near Silyari Mandhar, at about 04.30 o'clock, they saw that some persons were running near the pond. On suspicion, they intercepted them and apprehended one person i.e, Rakesh Kumar Kosle, however, other persons successfully fled from the spot. He revealed that names of the two persons accompanying him as Lokesh and Santdas, he does not know the name of the other persons. During search, piece of railway lines was found near the pond and upon asking, he said that after taking out various piece of railway line from the pond, he and his companions were waiting for Vinod Maratha and Radheshyam, who were coming alongwith truck so that they loaded the said railway lines in the truck. Total 317.02 meters of railway lines was recovered from the accused Ramesh Kumar Kosle in front of witnesses as per Exhibit P-10. Accused Ramesh Kumar Kosle could not produce any document or receipt regarding the alleged railway lines/property. Based upon seizure, accused was arrested as per arrest sheet Exhibit P-14 and his statement has been recorded as per Exhibit P-9. 10 / 13 Sub-Inspector S.B. Singh (PW-10) in his Court evidence has stated that on 04.07.2013 he alongwith his team including Inspector Rajesh Verma were on night patrolling duty near Bhatapara Up-section, they saw some people in suspicious condition near kilometer number 816/6-8. When they trying to intercepted them, two persons namely (Surendra Mandavi and Radheshyam) were caught and other 06 people managed to escape from the spot taking advantage of the darkness. A truck number CG-04-ZC/4915 was also found standing on the spot and during search, 12 pieces of railway line, 16 pieces of hexa blade with frame, 20 used hexa blades and 50 pieces of hexa blade of Mirinda company, one wooden gutkha and other 20 used hexa blades were recovered from the truck. The accused persons told that they are from the Vinod Maratha's gang and on his instructions, they along with other 06 labourers had cut the railway lines near the Mandhar Station and loaded 12 pieces in the truck including other articles/property. They also revealed that he along with three local persons Ramesh Kosle, Lokesh Manhare, Santdas had stolen the railway lines from Nipania Station and hidden the same in the pond between Mandhar and Silayari and on 29.06.2013 when they were waiting for a truck to take the said articles/goods near Silatra Raipur, they came to know that their accomplice Ramesh Kumar Kosle has been caught alongwith the articles/goods. The statements of these witness have not been contradicted in cross-examination. 11 / 13 16. S.N. Dwivedi (PW-2) has proved the fact that pursuant to memo issued to him, he conducted examination of the property seized in connection with offence under the Act of 1966 and proved his report Ex.P-6 and opined that seized property being railway tracks is the property of the Railways, which is not available in the market. 17. So far as submission with regard the confessional statement of the accused is not sustainable as it was recorded by the Railway Police Force, who are the Police Officer. In this regard, the Hon’ble Supreme Court in case of Balkishan A. Devidayal versus State of Maharashtra, (1980) 4 SCC 600 held as under: “58. In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge- sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating 'police officer'. Thus, judged by the test laid down in Badku Jyoti Savant vs State of Mysore, 1966 AIR 1746, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer' within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, 12 / 13 cannot be excluded from evidence under the said section. 18. From the evidence of PW-2 and PW-3 the fact of search and seizure as well as the nature of seized property stood established, which demonstrates involvement of the accused/applicants in commission of crime in question. Once it is established that it is the railway property and it is reasonably suspected to have been stolen, the burden shifts upon the accused to show how he came into lawful possession of the same. There is absolutely nothing on record to indicate that the properties were of a nature which were not exclusively earmarked for use by the railways. The applicants on one hand did not give any explanation regarding possession of the railway property and on the other hand did not produce any evidence or document to prove that they came into possession of railway property lawfully and were in total denial of the allegations levelled against them. 19. Thus in my considered view the prosecution has succeeded in proving from the cogent, consistent and reliable evidence that the applicants were in possession of 'railway property' and as such prosecution has discharged its onus of proving that applicants were found in possession of the railway properties. The onus thereafter shifted on the applicants to show that the possession of the property was lawful. The applicants failed to discharge the onus by proving their innocence i.e. to establish that they came into possession of the railway property lawfully. 13 / 13 20. For the foregoing discussion, this Court is of considered view that there is enough material on record to prove the prosecution case beyond reasonable doubts and both the Courts have rightly convicted the applicants after appreciating the materials/evidence on record. This Court does not find any perversity or material irregularity calling for any interference in the conviction as well as sentence of the applicants in revisional jurisdiction. 21. Accordingly, both the revisions are hereby dismissed. J/- Sd/- (Arvind Kumar Verma) Judge