The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 842 of 2015 Kishori Sow @ Kishori Sao The State of Jharkhand Versus --------- ….. Petitioner ….. Opp. Party CORAM: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA For the Petitioner For the State -------- : Mrs. J. Mazumdar, Advocate. : Mrs. Shweta Singh, A.P.P. --------- O R D E R Order No. 05/Dated: 26th February, 2024 Heard learned counsel for the parties. 2. The instant criminal revision is directed against the judgment dated 27.06.2015 passed by learned Additional Sessions Judge-IV, Dhanbad in Cr. Appeal No. 361 of 2009, whereby and whereunder the appeal filed by the petitioner against the judgment of conviction and order of sentence dated 08.12.2009 passed by learned Railway Judicial Magistrate, Dhanbad in R.P. Case No. 159 of 1992 (Trial No. 89 of 2009), by which the present petitioner was held guilty for the offence under Section 3(a) of the Railway Properties (Unlawful Possession) Act, 1966 while the other co-accused persons were acquitted and sentenced the present petitioner to undergo R.I. for two years, has been dismissed. 3. The factual matrix giving rise to this case is that the then Inspector In-charge, RPF Post Sitarampur got secret information and proceeded to Mahua Baghyan Morchi Para Kumardhubi for raiding in a Godown. As soon as they reached there, 4-5 persons fled away who were identified as Ramji Pandey, Ramji Sao, Rajender Sao and Rajendra Prasad and four persons were arrested from the place of occurrence namely, Raj Kishore Sao @ Kishori Sao, Dilip Bauri, Dharmraj Sharma and Bishu Kumar Chhatri. 4. On the basis of written complaint of the complainant RPF Post Sitarampur, R.P. No. 159 of 1992 has been registered for the offence under Section 3(a) of the R.P.(U.P.) Act. After completion of enquiry the I.O. submitted prosecution report and accordingly, -2- cognizance was taken and on 23.07.1992, charge was framed under Section 3(a) of the R.P. (U.P.) Act. 5. It is admitted fact that the petitioner was fleeing away seeing the railway police personnel at the time of occurrence and on chase, he was arrested on the spot. No statement of the petitioner was recorded by the railway police personnel, rather, other co-accused, who were fled away and later on arrested, their statements were recorded, which disclosed that the petitioner was owner of the said godown. It is also undisputed fact that all the other four co-accused, whose confessional statement was recorded vide Exhibit-8 to 8/3, have been acquitted extending the benefit of doubt by the learned
Legal Reasoning
Learned counsel for the petitioner has submitted that both the trial court and the appellate court have grossly erred in appreciating the evidence of witnesses in accordance with law. No foundational facts have been brought on record showing that the petitioner was the owner of any godown much else alleged in this case containing the stolen railway property. The true fact is that the petitioner has never indulged in any activities concerning the railway properties, rather he is a simple villager and labourer and was apprehended by railway police. No statement of the petitioner was recorded and no independent witness has been examined in this case showing that petitioner was ever involved in stealing railway articles. The learned court below has drawn wrong presumption that the police has failed to account for the stolen articles seized from his conscious possession, although no material is available to establish that the petitioner was in physical and conscious possession of the articles seized in this case, as such, no offence under the RP(UP) Act is constituted against the petitioner. He has been held guilty and sentenced by the learned trial court and further wrongly affirmed by the learned appellate court. It is a case where petitioner deserves acquittal and this revision may be allowed on merits. -3- 7. On the other hand, learned Additional Public Prosecutor, Mrs. Shweta Singh has vehemently opposed the contentions raised on behalf of the petitioner and submitted that Exhibit-8 is the confessional statement of co-accused namely, Bishu Kumar Chhatri, who has admitted himself to be labourer and present petitioner to be owner of the said godown from where stolen railway properties were seized. Huge quantity of railway property has been seized from the godown of the petitioner and seizure list witnesses have also corroborated the prosecution story. Therefore, there is no illegality or infirmity in the impugned judgment of the trial court as well as the appellate court and this revision has no merit and is fit to be dismissed. 8. It appears that during trial, the learned trial court has examined five witnesses, which are as follows: P.W.-1 P.W.-2 P.W.-3 P.W.-4 P.W.-4 : : : : : Vinay Kumar Ram. Jay Kishore Pathak. B.D. Paul. Ram Brikash Singh (I.O.) Nirmal Bilung. 9. I have gone through the evidence of witnesses examined in this case, but none of them have been able to formally proved that any material was collected during investigation to establish that the godown was owned by present petitioner. None of the local villagers were enquired into or examined during course of trial to substantiate the above fact. It further appears that the confessional statement of co- accused was recorded by one Ram Brikash Singh (I.O.), which has been made basis for conviction of the present petitioner, but confession of co-accused cannot be considered against the other co- accused, unless it is proved in accordance with law. It is admitted position that the confession of other co-accused Bishu Kumar Chhatri was recorded by Ram Brikash Singh (I.O.), who has not been examined in this case. The petitioner has no opportunity to -4- cross-examine the I.O. as regards the materials stated showing his involvement in the present case here. 10. Here, it is pertinent to extract the provisions of Section 3(a) of R.P. (U.P.) Act:- 3. 1 [Penalty for theft, dishonest misappropriation or unlaw- ful possession of railway property].-2 [Whoever commits theft, or dishonestly misappropriates or 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 posses- sion 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 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; From bare perusal of the above provision, it is crystal clear that in order to fasten the liability for the said offence, there must be allegation of commission of theft or dishonestly misappropriation or prove about possession of any railway property against the accused concerned or there must be some materials to establish that the accused has obtained the stolen railway property, if these foundational fact have been proved by the prosecution only then burden is upon the accused to give valid explanation about railway property which was found in his possession. 11. In the instant case, both the courts below had miserably failed to appreciate that there was no evidence at all showing that the petitioner was owner of any godown or any stolen railway property was found in his physical and conscious possession or he has received a stolen railway property. Therefore, the finding of the court below regarding conviction and sentence of the petitioner is not tenable under law. 12. In view of above reasons, I find merit in this revision, which is fit to be allowed. -5- 13. Accordingly, the present criminal revision is allowed and the impugned judgments passed by both the learned trial court as well as the learned appellate court are set aside. 14. Petitioner is on bail, as such, he is discharged from the liability of bail bond and sureties. 15. Let the copy of this judgment along with L.C.R. be sent to the concerned court forthwith. Sunil/ (Pradeep Kumar Srivastava, J.)