N. Singh & S. B. Singh, Constables namely R.P Singh, Ishwari Singh & v. B. Singh, went out for a watch and laid an ambush in between the
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 577 of 2017 --------- Umesh Kumar Yadav, aged about -41 years , son of Sri Sheo Narayan Yadav, Resident of -village-Buka, P.O. & P.S. Bhavanathpur, District- Garhwa. At present resident of -village & Post- Kumandih, P.S. – Manika , District- Latehar Petitioner ... -Versus- The State of Jharkhand … Opposite Party --------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD --------- For the Petitioner For the State : Mr. Rakesh Kr. Sinha, Advocate : Mr. V.S. Sahay, A.P.P. --------- JUDGMENT Order No. 08/ 23.01.2024 This Criminal Revision has been filed on behalf of the petitioner by challenging the judgment dated 03.10.2016 passed in Criminal Appeal No. 03 of 2014 by Sri Rajesh Kumar Pandey, the learned Additional Sessions Judge, Latehar by which the appeal preferred by the petitioner has been dismissed whereby affirming the judgment of conviction and order of sentence dated 30.01.2014 passed in R.P. Case No. 89 of 1995 by Sri Uttam Anand , learned Railway Magistrate Palamau at Daltonganj by which the then learned Railway Magistrate has convicted this petitioner along with one Rajendra Prasad Sao for the offence under section 3 of the Railway Property ( Unlawful Possession) Act, 1966 and sentenced him to undergo S.I. for the period of 2 ½ ( Two and half years) and pay the fine of Rs. 10,000/- each . 2. On the basis of a written-complaint addressed to Inspector- in-charge, Patratu Post, submitted by one S.K. Paul, Inspector of R.P.F. of Patratu Post, dated 18.09.1995, the Complaint got an information that Railway OHE contact copper wire have been stolen from under-construction railway line, in between Bendi and Kumandih Railway stations and has been kept concealed in jungle 2 and was likely to be disposed of by the criminals. Thereafter, the complainant with other members of RPF, namely SI-RK Mishra, SI- SK Toppo, Head Const. R. N. Singh & S. B. Singh, Constables namely R.P Singh, Ishwari Singh & V. B. Singh, went out for a watch and laid an ambush in between the said Bendi & Kumandih Railway stations by the side of the Railway Track when at about 17:15 hours on 18.09.1995, he noticed movement of 4-persons with said Railway OHE wires in the jungle under suspicious circumstances. Then waiting RPF personnel chased and surrounded all four of them, but while one miscreant was arrested but the remaining there and fled away after throwing away the wires carried by them. The apprehended miscreant disclosed his name as Umesh Kumar Yadav i.e. the petitioner from whom 16- pieces of OHE wire, each of 2.5 meters in size, in total weighing about 40 kg were recovered. It is alleged that one the three persons who escaped was identified as Lakhan Sharma. The apprehended accused Umesh Kumar Yadav, also disclosed the names of the remaining two miscreants as Lal Bihari Pahariya and Rajendra Prasad who had escaped after throwing a bundle of wire of 50 meters weighing about 60 kg. It is alleged that the wire thrown by the escapee Lakhan Sharma was in 15-pieces each of 2.5 meter in length and weighed about 40 kg. It is alleged that then on pointers provided by arrested Umesh Kumar Yadav, some 400 meters from there i.e. from Kilometer No. 227/02 of the Railway line (i.)17 bundles of said OHE wire, 600 meters in length weighing about 860 kg, (ü). One Hacksaw fitted with blade (iii). one axe, were recovered. It is alleged that accordingly, the accused Umesh Kumar Yadav was arrested on the spot and all the wires recovered along with other items were seized with a preparation of seizure-list there itself and label was placed on them. The accused and the seized materials 3 were taken to the Patraru RPF- Post for further proceedings. 3. Heard learned counsel for the petitioner and learned counsel for the State. 4.
Legal Reasoning
It is submitted by the learned counsel for the petitioner that impugned judgment of conviction and order of sentence passed by the learned Courts below are illegal and not sustainable in the eye of law. It is submitted that the learned Courts below did not consider that the evidence of the prosecution witness are full of inconsistency. It is submitted that the learned Courts below failed to consider that the work of electrification of Railway was awarded to L&T Company but none of the employees of the said Company were examined by the prosecution in course of inquiry. It is submitted that neither in course of inquiry nor in course of trial, it has come that the alleged OHE wires were Railway Property because admittedly no mark or sign indicating the same to be Railway Property was present over those wires. It is submitted that the learned Courts below ignored the fact that the weight of the seized articles was based upon the presumption of the R P F officials, who at the place of occurrence itself has ascertained the weight of the wire. It is submitted that no theft report in respect of theft of wire was placed on record by the prosecution. It is submitted that the seized articles were never produced before the Court in course of trial. It is submitted that the Complainant himself has become the Inquiry Officer of this case which has seriously prejudiced the case of defence. It is submitted that the learned Courts below erred in relying upon the confessional statement of the Petitioner, because the same was made before the Police. It is submitted that the evidence of P W - 4 is not reliable because he deposed in Paragraph - 14 of his evidence that the Expert Opinion was not prepared/ rather it was given on the basis of experience. It is submitted that that no document claiming ownership of the seized / 4 stolen articles was produced by the Railway or by the Contractor in this case. It is submitted that the petitioner was arrested on mere suspicion. It is submitted that P.W. 1 namely Sushil Kumar Toppo during his cross-examination had admitted that seized article were not produced before him in the Court and also admitted that it was stolen Railway Property. It is submitted that the P.W. 2, P.W. 3 and P.W. 4 namely S.K. Paul, Ram Narayan Singh and Inspector- Arjun Prasad Yadav respectively are not reliable witnesses hence the judgments and order of sentence passed by the learned Courts below may be set-aside and this Criminal Revision Application may be allowed. 5. On the other hand, the learned A.P.P. appearing for the State has opposed the prayer and submitted that this Criminal Revision is devoid of merit. It is submitted that the petitioner had been caught red handed on the spot and he was identified by the witnesses even during the inquiry at the time of trial before learned Court below. It is submitted that the P.W. 3 namely Ram Narayan Singh had arrested and caught the petitioner on the spot. It is submitted that P.W. 1 and P.W. 2 , P.W. 3 and P.W. 4 namely Sushil Kumar Toppo, S.K.Paul, Inspector , Ram Nayan Singh and Inspector Arjun Prasad respectively have fully supported the prosecution case . It is submitted that Exhibit 5 is an Expert Opinion which show recovered wire with the petitioner belonged to Railway property. It is submitted that the petitioner has not taken any defence of except simply denial during while his examination under section 313 Cr.P.C. It is submitted that the petitioner is a veteran criminal. It is further submitted that the Exhibit 1, Exhibit 2, Exhibit 3 and Exhibit 4 fully supported and corroborated the case of the complainant and it is fully established that the petitioner and other Co-accused had committed theft of Railway Property and hence, this Criminal 5 Revision may be dismissed. 6. Perused the Lower Court Record and considered the submission made by both the sides. 7. It transpires that the Complaint Case was filed on 18.09.1995 by Railway Official when they learnt that the accused persons Umesh Kumar Yadav, Lakhan Sharma and Rajendra Prasad Sao had cut the copper wire which were fixed over the Railway Track and said copper wire had been concealed in the Jungle, later on after conducting search the petitioner Umesh Kumar Yadav was arrested but other persons Lakhan Sharma and Rajendra Prasad Sao had fled away. 8. It transpires that seizure list was prepared on 18.09.1995 itself at 05:30 P.M. showing the recovery of 200 metre wire from the North side of Jungle in between Begndi and Kumandi Railway Station and as shown seizure of sixteen (16) pieces of copper wire each length about 2. 30 meters weighing about 40 K.g., fifteen (15) pieces of copper wire each length 2. 30 meter and weighted about 40 kg which ousted away by Lakhan Sharma while flewing away and one round shape bundle copper wire about 50 meters weighting 60 kg behind the booty by Lal Bihari Perhiya and Rajendra Prasad Saw by throwing away. Therefore the seizure list , reveals that recovery of 16 pieces of copper wire weighing around 40 kg from the possession of this petitioner whereas the other copper wires i.e. 15 pieces weighting around 40 kg and other 50 meters weighing 60 kg were also seen. 9. It transpires that the confessional statement of the petitioner was recorded on 18.09.1995 itself, in which he said to have admitted his guilt, thereafter confessional statement of Lakhan Sharma was also recorded on 01.10.1995 admitting his guilt. 6 10. It transpires that R.P.F. had submitted the prosecution report under section 3 of the Railway Property (Unlawful Possession) Act, 1966 on 12.09.1996 and then Chief Judicial Magistrate had taken the cognizance under section 3 of the Railway Property (Unlawful Possession) Act, 1966 against the Umesh Prasad Saw and three others . 11. During trial four witnesses were examined on behalf of the complainant who were as follows:- (i) P.W. 1- Sushil Kumar Toppo, (ii) P.W. 2- S.K. Paul, (iii) P.W. 3- Ram Nayan Singh and (iv) P.W. 4 - Inspector-Arjun Prasad Yadav. 12. The following documents have been marked as the Exhibit on behalf of the prosecution which are as follows:- (i) Exhibit-1 is the "seizure-list" inter-alia showing seizure of 16-pieces of OHE wire each of 2.30 meters in length weighing 40 kg from the possession of the accused Umesh Kumar Yadav (ii) Exhibit-1/1 is the another seizure-list with respect to seizure of 860 kg of said wire from 600 meters from the spot kept in 17- bundles with 1-hacksaw fitted blade and 1-axe . (iii) (iv) Exhibit 1/2 is the signature of S.K Toppo , Exhibit-1/3 is the signature of the witness SK Toppo thereon. (v) Exhibit-2 in main file (and Exh. 4 in split up file) is the confessional statement of the arrested accused Umesh Kumar Yadav (vi) Exhibit-3 is the site plan of the place of occurrence, (vii) Exhibit 4 is a written complaint, (viii) Exhibit-5 is the Expert Opinion on the seized materials, 7 (ix) Exhibit -6 is the confessional statement of Co-accused Lal Bihari Pahariya (x) Exhibit 7 is the Enquiry report , 13. Material Exhibit-l is the label pasted on the seized material from Lakhan Sharma. 14. The petitioner was examined under section 313 of Cr.P.C. on 31.02.2014 and to which he denied the circumstances put forth before him. 15. Neither any defence witness nor any document marked as exhibit on behalf of the accused. 16. Thereafter the learned Railway Magistrate has convicted the petitioner for the offence under section 3 of the Railway Property (Unlawful Possession) Act, 1966 and which has been affirmed by the learned Additional Session Judge in Criminal Appeal No.03 of 2014 and hence this Criminal Revision Application has been filed. 17. So far the evidence of prosecution witnesses is concerned. P.W. 1 is Sushil Kr. Toppo , Inspector , R.P.F. who stated during his evidence that they had constituted the team on 18.09.1995 for conducting raid at Kilometer No.-227 of 2007and had recovered sixteen (16) pieces of OHE Copper Wire having length around 2.5 meters each weigh around 40 Kg from the petitioner Umesh Kumar Yadav. He also stated that accused Lakhan Sharma had fled away after throwing fifteen (10) pieces of Copper Wire length having 2.5 meters each being around 40 kg and accused Umesh Kumar Yadav has disclosed the name of Lal Bihari Pahariya and Rajendra Prasad who fled away after throwing the material which were having length fifteen (15) meters weigh 60 kg then only on the disclosure of the apprehended person, 17 bundles of Copper Wire having length of 600 meters and weigh around 860 kg. The apprehended person failed to produce any paper but he admitted 8 that they had committed theft of the articles 03-04 days earlier from Baida Serve Kusundia station. Thereafter two (2) seizure list were prepared separately . Seizure list prepared by S.K.Paul in writing in signature and also signed the petitioner Umesh Kumar Yadav and seizure list marked as Exhibit 1 and Exhibit 1/1 respectively. He further proved confessional statement of Umesh Kumar Yadav marked as Exhibit 2 . He further proved the confessional statement of co-accused Lakhan Sharma marked as Exhibit 2/1. He further proved the map prepared by A.K. Yadav marked as Exhibit 3. He further proved the sample of seized articles which was produced before the learned Court below, during his evidence marked as Material Exhibit (I). 18. During cross -examination he stated that he had not filed this case but he was enquiring party and place the occurrence was at distance of 400 yard from the Railway Track and they had moved from the Railway Track and found the accused person near the place of occurrence and there was no other person near the place of occurrence. He admitted that he described the length of wire on the assumption and learnt about the theft . 19. Thus, from scrutinizing the evidence of P.W. 1, it is clear that he proved seizure list marked as Exhibit 1 and 1/1 and recorded the confessional statement of accused Umesh Kumar Yadav and co- accused Lakhan Sharma marked as Exhibit 2 and Exhibit 2/2 respectively marked as 3 and also proved the sample of seized articles marked as Material Exhibit 1 but he also admitted that there was no independent witness near the place of occurrence. Thus, P.W. 1 had admitted that there was no independent witness at the place of the occurrence at the time of preparation seizure list . 20. P.W. 2 is S.K. Paul, Inspector, R.P.F., and Asansol. During his evidence, he stated that he learnt on 18.09.1995 that OHE (wire) 9 used for the new construction was concealed by the miscreants and they were lifted to some other place. Upon receipt of information he alongwith S.I. R.K. Mishra, S.I. S.K. Toppo , constable R.P. Singh , Head Constable H.P. Singh , Constable V.B Singh and other arms forces went to place of occurrence made ambush in the Jungle. Then at around 05:15 P.M., he saw that four (04) persons were moving with OHE Wire and upon seeing them , they surrounded them and chased them and apprehended one person and from whose possession sixteen (16) pieces OHE Copper Contract Wire which was having length 2.30 meters weight around 40 kg were recovered and three (03) persons fled away after throwing the remaining materials and the apprehended person disclosed his name as Umesh Kumar Yadav i.e. this petitioner and he also identified the person Lakhan Sharma who fled away and disclosed that the said Lakhan Sharma had fled away after throwing 15 pieces of OHE Copper Contact Wire each 2.30 meters length. He also stated that two (02) persons fled away after throwing one bundle OHE Copper Contact Wire were weighing around 60 kg who were Rajendra Prasad Saw, Lal Bihari Pahariya .The apprehended person also disclosed that they have done theft of said wire 3-4 days earlier from the Railway Station and concealed in the Jungle and he also disclosed that other material is in jungle also and on the disclosure of the petitioner Umesh Kumar Yadav, 17 bundles having 600 meters OHE Copper Contact Wire one Hacksaw fitted with blade, one axe, which were concealed in the Jungle, were also recovered . They prepared two seizure list for two different place of occurrence and he proved his signature and other person marked as Exhibit 1 and Exhibit 1/1 respectively. He also stated that apprehended person confessed his guilt, then lable were pasted on the seized articles and they proceed the accused person and the material and made written complain in the name of in-charge Inspector. He proved his writing in signature 10 in written complain alongwith his endorsement marked as Exhibit 4 and also marked as Exhibit 2 in supplementary case. He also proved the F.I.R. prepared by S.I. A.P. Yadav marked as Exhibit 5 and which was also marked as Exhibit 3 in the supplementary case. He also stated that seized properties were property of Railway and it was not available in the open market. He handed over the investigation of this case to In-charge S.K. Toppo. During cross – examination he stated (before charge) , Railway Properties were recovered from the land of Forest Department and there was no population near the place of seizure. 21. He further stated that L & T is doing the work of OHE and plenty contractors has stated that seized material is not in record. Thus from the scrutinizing the evidence of P.W. 2 , it is evident that he is the informant of this case and he has proved the F.I.R. marked as Exhibit 4 and he also proved the writing in signature in the Seizure list marked as Exhibit 1 and Exhibit 1/1 respectively. But he also admitted that he was seized from the Forest Land. 22. This witness also stated that work of preparation was conducted from Chandrapur to Somnagar Railway Station by the L& T company on contract and the wire was supplied by the Railway to the company, It was work of the company to install the wire but he was not aware as to how much wire given to the company. 23. He also could not say about theft report and also admitted that stolen wire was not produced before the learned Court, however seized wire was taken to station with the help of bamboo by the 04-05 constables. He stated that the accused was carrying the wire on his shoulder, however he had not weigh the material at the place of occurrence rather it was done by presumption. He had seen 11 Rajendra Saw and Lal Bihari Pahariya fleeing away with the Railway Property and they had fled away. 24. Thus from scrutinizing the evidence of P.W. 2 , it is evident that three person had fled away after throwing the wire and this petitioner was apprehended and there was no population near the place of occurrence . 25. P.W. 3 is Ram Narayan Singh , ASI, R.P.F. were stated that on 08.09.1995 , he was posted as Head Constable in Patratu and on that day he alongwith R.P.F, Inspector In-charge S.K. Paul, S.I. S.K. Toppo, S.I. R.K. Mishra, H/C S.B. Singh and other Constable and other forces at the Jungle and made ambush on 05:15 P.M. and only one person was arrested and three (03) persons fled away. Apprehended persons disclosed his name as Umesh Kumar Yadav and disclosed the name of other person Lakhan Sharma, Rajendra Saw and Lal Bihari Pahariya who had fled away and also seized 16 pieces of OHE Wire from the apprehended person and also seized 15 pieces of wire at the distance of 400 meters in Jungle on the disclosure of apprehended person. Even one Hexsa blade, one Axe were also recovered on the disclosure of apprehended person and seizure list were prepared at all the places. He stated that OHE wire is property of Railway and said wire is not sold in open market, then apprehended person had admitted his guilt and had stated that it was stolen Railway Material, he also identified the petitioner . 26. During his cross-examination before charge, he stated that he cannot say them the name of this wire was stolen. He also admitted to have not seen any accused persons for stealing the wire. He also admitted that the seized wire had not HD tag of railway. Though the seizure list were prepare on the spot during his presence but he does not remember the contents of the same . He cannot say the name of Jungle but he admitted the place of occurrence is a 12 Jungle under forest Department and arrest place from the place of occurrence is situated at the distance of 3 km . He stated that the seize material were produced before the Police post. However the seize material has not been produced before him . He also stated that firstly the person was apprehended and on his disclosure and articles were recovered. He has shown ignorance about theft of OHE wire of Railway . 27. Thus from scrutinizing the evidence of P.W. 3 , It is evident that he had arrested the petitioner Umesh Yadav whereas three (03) other persons Ram Lakhan Sharma, Rajendra Kumar Saw and Lal Bihari Pahariya had fled away . He also admitted that seized OHE wire were recovered from the Jungle of the Forest Department at the disclosure of this petitioner. 28. P.W. 4 is Inspector Arjun Prasad Yadav and during the evidence he stated that he was part of Inquiry Team of the occurrence and he was posted in RPF Post when the investigation was handed over to him. During inquiry he recorded the statement of prosecution witnesses and inspected the place of occurrence and had prepared the site plan which is marked as Exhibit 3. During investigation he obtained of expert opinion Yaswant Singh and disclosed the seized articles is a Railway Property and each OHE wire on from SEFO/O11E/RE/Darwadih. He also stated that the material were not available in open market. He proved expert report marked as Exhibit -5 (with the objection) . He further proved the confessional statement of co-accused Lal Bihari Paraya marked as Exhibit -6 . Thereafter he has submitted the prosecution report against the accused persons marked as Exhibit -7 . 29. During cross-examination he admitted that the investigation of this case was handed over to him on 30.11.1995 i.e. two (02) months after the occurrence . The he inspected P.O. on 23.12.1995 but he had not found any independent witness . He had 13 seen case properties in Malkhana, it was not sealed but paper was pasted in case number and he obtained the theft report on 20.12.1995 from Yaswant Singh. Seized property was pasted by the expert himself but he did not show any mark of the railway and even the date of company was not mentioned and he had weighed at the post but expert has mentioned the weight . 30. Thus , from scrutinizing the evidence of P.W. 4 , it is evident that he is a part Inquiry Officer and he took investigation of this case on 30.11.1995 but he had inspected the site on 23.12.1995 . He also admitted that there was no independent witness at the place of occurrence . Thus P.W. 4 has supported the prosecution case. 31. Even P.W. 3 had admitted during his evidence at para 16 that firstly the petitioner was apprehended and then all articles were recovered on his disclosure . Thus the P.W. 3 also not seen the petitioner for committing the theft of OHE wire . He also admitted that there is no independent witnesses at the time of preparation of seizure list. 32. Even P.W. 2 had admitted during cross-examination that no mark of Railway on the seized articles and he was not aware about the theft report of OHE wire. 33. Even P.W.1 admitted that there is no habitation near by place of occurrence . However this P.W. 1 was not cross-examined after charge and as such the evidence of P.W. 1 is not reliable and expunged as he was not brought for cross-examination after charge. 34. It transpires that P.W. 2 is the first Inquiry Officer of this case and he was also the member of the raiding party . However he also stated that there is no mark of Railway on the seized articles and he also could not say the name of company who was doing work of OHE. He had made the OHE wire was removed from the place of occurrence with the help of Gangman . P.W. 2 could not 14 stated about the name of Gangman who was said to be present on the date of occurrence, but he has proved the recovery of the stolen Railway Property 60 kg wire . Thus P.W. 2 also supported the prosecution case. 35. It is further relevant that no independent witness had been examined in this case on behalf of the prosecution. 36. Exhibit – 4 is the confessional statement of the petitioner for committing theft of the wire . 37. Exhibit- 1 is the seizure list dated 18.09.1995 showing the recovery of 16 pieces of copper contract Railway OHE wire each length having 2.30 meter weighing around 40 kg from the possession of the petitioner, whereas 15 pieces of another copper contract railway OHE wire were recovered which were thrown away by the co-accused Lakhan Sharma on the disclosure of this petitioner. 38. Even one around 6 bunddle copper contact railway OHE wire about 15 meters weighing 60 kg were recovered on the disclosure of the this petitioner . 39 Exhibit 1 seizure list , Exhibit 1/1 have been has been signed by the petitioner and also signed by the S.K. Paul i.e. P.W. 2. 40. Learned Courts below have recorded the finding that seized material were worth approx. Rs. 2,00,000/- (Two lakhs) in the year 1995 and Copper OHE wire is used for electrical of the Railway lines . 41. Although the learned counsel for the petitioner has pointed out that there was no mark of Railway OHE seized copper wire but he failed to controvert the evidence of P.W. 2 , P.W. 3 and P.W. 4 namely Sunil Kr. Toppo, S.K. Paul, R.N. Singh and A.P. Yadav respectively that the seized OHE wire is not available in open marked and there is no defence evidence produced on behalf of the accused petitioner . 15 42. So far the question of non-examination of the independent witness is concerned, it is apparent that there was no habitation site near the place of occurrence and as such there was no possibility of availability of independent witnesses . 43. Non- examination of any Official of L&T company has been discussed by the learned Courts below and this Court is of the view that non- examintion of any Official L&T company is not fatal as in the present case the petitioner was caught red handed having 16 pieces of copper wire weighing around 40 kg . 44. In view of the discussion made above the conviction of the petitioner under section 3 of the Railway Property ( Unlawful Possession ) Act, 1996 is up- held. 45. So far as the sentence is concerned, it appears that the petitioner had remained in custody since 20.09.1995 to 20.11.1995 and after the conviction, he was in custody since 27.04.2017 till 16.05.2017 i.e. around three month. 46. Considering the long protracted of trial i.e around 30 years and custody of around three month the sentence of the petitioner is reduced to extent that the period of undergone by the petitioner in jail shall be treated as the period of sentence. 47. Thus this Criminal Revision No. 577 of 2017 is dismissed with modification in sentence as mentioned above. 48. Let a copy of this order alongwith the Original Lower Court Records be sent to the learned Court below for the needful. (Sanjay Prasad, J.) Bibha/ 16