The State of Maharashtra v. Bhima Murlidhar Ghusade

Judgment and Order dated 18th May, 1996 passed by JMFC, First Class, (Railways) Manmad in regular case no. 16 of 1993 acquitting the respondent from the charge of commission of offence punishable under Section 3(a) of the Railway Property apeal 49.1997 (Unlawful Possession) Act, 1966 (29 of 1966) on the allegation of the respondent being found in possession of one ACB plate of railway worth of Rs. 50/-.

2. According to the prosecution PW.1 Shinde on 13.1.1993 while on duty at Main Gate of Railway Workshop, Manmad at 12'noon found respondent coming out of main gate of the workshop in the suspicious condition. PW.1 had apprehended and searched him. During the said search he had found one ACB plate tied by kardora beneath his shirt and trouser. The respondent made confession of committing the theft. He was produced before inquiry officer PW.2 Saraswat at RPF Office. PW.2 seized the said plate by recording the seizure panchanama. He also made the confession to PW.2. During enquiry PW.2 showed the said property to railway expert and he issued the certificate of the said property being railway property. Since PW.2 found that there was sufficient evidence he submitted the complaint against the respondent for the offence under Section 3(a) of RPUP Act.

3. At the trial on the basis of the evidence of PW.1 Shinde charge for commission of such offence was claimed against the respondent. The respondent pleaded not guilty to the said charge. The complainant examined four more witnesses i.e. PW.2-Enquiry Officer, Saraswat, PW.3-Madhukar Ramchandra Waghe, District Controller of Stores at Manmad, PW.4- Upadhyaya regarding certificate issued by him of property seized being property of railway, PW.5-panch Bawaskar for apeal 49.1997 seizure panchanama. The defence of the respondent was that of an total denial and of false implication. The trial court after appreciation of the evidence acquitted the respondent from the charge of commission of such offences.

4. Considering short controversy agitated by learned APP regarding the matter instead of separately narrating the submission of learned APP the same are dealt while examining the record and proceedings and the judgment appealed to ascertain the merits of the same. Needless to add, none being present on behalf of the respondent the court has no advantage to hear the submission on his behalf.

5. The reasoning given by the trial court reveals that the trial court declined to accept the evidence of PW.1 and particularly his claim of having apprehended the respondent and during his search the seized plate being found concealed under his shirt by means of kardora. The said reasoning reveals that the trial court has duly taken into consideration that there being variance in the evidence of PW.1 regarding the time precisely at which he had apprehended and seized the respondent. The trial court also observed that PW.1 having admitted that 12'noon being the lunch time many persons would have been at the gate at which the said incident had occurred ; PW.1 deliberately to explain non-examination of any such witness and respondent being produced at 12.30 p.m. in the office of PW.2 has deliberately given different versions in his deposition regarding the time at which the incident had occurred. The trial court also observed that since the office of PW.2 was only at short distance apeal 49.1997 of 100 ft. away from the place of the incident, the evidence of PW.1 failed to explain the delay in producing respondent before PW.2. After carefully considering the evidence of panch witness, PW.5 that panchanama was already prepared when he had been to the office of PW.2 his evidence being not helpful to the complainant to establish the seizure of an plate from the possession of the respondent. The trial court after considering the evidence of PW.4 rightly came to the conclusion that the same failed to establish the seized property being the property of railway as he has failed to certify the number or size as used as ACP plates of railway. The trial court rightly observed that though PW.4 claimed that there was some drawing marks but his certificate does not reveal that there were any drawing marks as that of the ACP plates of railway.

6. Lastly, the trial court declined to accept the purported contention relied by the complainant being confession of the respondent. The trial court in the said respect observed that inquiry officer had not bothered to record the confession in presence of two independent panchas as required under the rules. The trial court also observed that inspite of respondent being a Marathi man the confession is said to have made in Hindi.

7. Thus, trial court having carefully considered evidence surfaced at the trial, it is difficult to accept submission of learned APP that there was no proper appreciation of an evidence adduced by the complainant or the trial court apeal 49.1997 erroneously discarded the confession of the respondent. As a matter of fact as discussed hereinabove the trial court has given cogent reasons for coming to the conclusion of failure of the complainant to establish the fact of property being seized from the respondent i.e. delay occurred in producing the respondent before PW.2, panch not supporting the case of the seizure from the person of the respondent and all the said reasons being in consonance with the evidence surfaced at the trial, it is difficult to accept that any case is made for interference as tried to be canvassed by learned APP.

8. The present appeal being directed against the Judgment and Order of acquittal passed in the favour of respondent, strengthening presumption of innocence in his favour interference would have been warranted only in the event of the Judgment and Order being perverse and not based upon the evidence surfaced at the trial or having germen from improper appreciation of an evidence. No such a case being found and view taken by the trial court being the possible and plausible view of the evidence surfaced at the trial, no interference is warranted with the said Judgment and Order of acquittal. The appeal sans merit, stands dismissed. [ P.D. KODE, J. ]