…. Binod Madaiya @ Binod Maraiya … v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1639 of 2017 …. Binod Madaiya @ Binod Maraiya …… Petitioner Versus The State of Jharkhand …… Opp. Party With Cr. Revision No. 1644 of 2017 …. 1. Maimul Sk. 2. Marful Sk. @ Murful Sk. @ Marful Saikh 3. Makbul Sk. …… Petitioners Versus The State of Jharkhand …… Opp. Party ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the petitioner : Mr. Swami Nath Prasad Rai, Adv. For the State : Mr. Santosh Kumar Shukla, A. P. P. [in both cases] [Cr. Rev. No. 1639 of 2017] Mr. Sardhu Mahto, A. P. P. [Cr. Rev. No. 1644 of 2017 ……. JUDGMENT 09/03.04.2024 Both Criminal Revision Applications i.e. Criminal Revision No. 1639 of 2017 and Criminal Revision No. 1644 of 2017 are being heard together and are being disposed of by this common judgment as both are arising out of the same FIR and common judgment dated 05.06.2017 passed by Sri Mithilesh Prasad, the learned Principal Sessions Judge, Sahibganj and the judgment of conviction and order of sentence dated 27.03.2015 passed by Sri Anand Mani Tripathi, learned Railway Judicial Magistrate, 1st Class, (Railway) Sahibganj in R. P. S. Case No. 01 of 2012 corresponding to T. R. No. 47 of 2015. 2. Both Criminal Revision Applications i.e. Criminal Revision No. 1639 of 2017 and Criminal Revision No. 1644 of 2017 -1- have been filed on behalf of the petitioners challenging the judgment dated 05.06.2017 passed in Criminal Appeal No. 33 of 2015 by the learned Principal Sessions Judge, Sahibganj by which Sri Mithilesh Prasad, the learned Principal Sessions Judge, Sahibganj had dismissed the Criminal Appeal No. 33 of 2015 and affirmed the judgment of conviction and order of sentence dated 27.03.2015 passed by Sri Anand Mani Tripathi, learned Railway Judicial Magistrate, 1st Class, (Railway) Sahibganj in R. P. S. Case No. 01 of 2012 corresponding to T. R. No. 47 of 2015 by which the petitioners have been convicted for the offences under Section 3 (a) of R. P. (U.P.) Act, 1966 and have been sentenced to undergo R. I. for a period of two (2) years each for the offence under Section 3 (a) of R. P. (U.P.) Act, 1966. 3. The prosecution case, in brief, is that written complaint (Ext. 4) filed by one Rajat Ranjan Inspector-in- Charge/RPF/Post/Pakur, is that a theft of Railway signalling cable of 12 core approximately 120 meter in length was committed by some persons from Railway bridge No. 237 in between Pakur Railway Station and Tilbhita Railway Station on 27.12.11 for which a raid was being conducted by the Officers and staffs of RPF/Post/Pakur along with C.I.B. Team of HWH-II at Tilbhita Kolapahari area and a secret watch was being kept towards the connectivity place of Railway track and Kolapahari area through a canal passing by the west side of UP Railway Track. The informant and other officials of the RPF including C.I.B. Team of HWH-II, were keeping close vigil on 09.01.12 at 9:30 hours on the aforesaid place where they noticed some suspected movement in the lower portion of dry canal approximately 300 yards away from UP Railway Track between Km. No. 154/8-9 near Tilbhita Railway Station whereupon they rushed there and surrounded the suspected persons. The raiding party saw -2- that those miscreants were engaged in handling with Railway signalling cable in cut pieces out of which some were in burnt condition and some were intact with insulation with different sizes. The persons, who were handling the Railway signalling cable, were enquired into by the raiding party whereupon they disclosed their names as Maimul Sk., Murful Sk., Binod Maraiya and Makbul Sk. but they failed to render any legal account or satisfactory reply regarding the articles found in their possession. The raiding party seized the said Railway signalling cables and a seizure list was prepared and all four accused persons were arrested. 4.
Legal Reasoning
It is well settled by the Hon’ble Supreme Court in the case of Tofan Singh Versus State of Tamil Nadu reported in (2021) 4 SCC 1 that confessional statement of the accused is not admissible in law. 42. It has been held in the case of State Versus Akbar Khan reported in (1979) 1 MPWN 197 at para -2 and 3 as follows:- “Para-2:- The facts giving rise to this appeal, as per prosecution case, are that on 13th October 1970, Sub- Inspector Railway Protection Force Gulabsingh PW 1, received information that a dynamo-belt, which is the railway property is in possession of the respondents, and is being used by them in their flourmill situated at Nai Dilli Nagda. On the basis of this information he sent a written report to ASI, RPF. Nagda who in turn proceeded to raid the said installation of the accused persons. In the presence of respondent No.1 Akbar Khan and the 2 Panch witnesses Rajbeharisingh PW 2, the ASI, seized a dynamo-belt containing mark IR embossed on it, which was in actual use at that time in the flour-mill. This belt was certified to be a railway property and on these allegations the respondents were prosecuted. The defence of respondent No.1 Akbar Khan at the trial was that he is only a servant of respondent No.2 Gulmohammad, -16- while the defence of respondent No.2 Gulmohammad was of denial and false implication. Held: According to this section in order to convict a person for this offence it is necessary for the prosecution to prove that the articles seized from the possession of the accused should be railway property, and that there should be reasonable suspicion of the same having been stolen or unlawfully obtained. Unless and until these ingredients are proved satisfactorily, the accused cannot be held guilty of that offence. Para-3:- In the present case the only evidence adduced by the prosecution is that the seized belt has the embossed marking of 1.R. which according to the prosecution means Indian Railways, But apart from the oral testimony there is no documentary evidence adduced by the prosecution to indicate that this embossed marking I.R. on the belt denotes that it is the railway property. The Panch witnesses Shyamsundar Ram PW 3 and Maliksingh PW 4 as also Motilal PW 5 have only deposed that the belt was seized with marking I.R. However, these witnesses do not fully support the prosecution case. The other two witnesses Gulabsingh PW I and Shyambehari Singh PW 2 are on the point of seizure of the belt. That apart there is no other convincing evidence to show that this belt which was seized from the possession of the respondents was firstly the railway property, and that the respondents were suspected of being in possession thereof in an unlawful manner or is a stolen property. The prosecution has not led any evidence to show that the belt seized belong to the railways, that it was stolen from a particular place at a particular time from the possession of the Railway authorities, that there was shortage of the belt due to its theft or that prior to the theft it was being used at a particular place where from it was found missing, but in absence of any such evidence it cannot be said that the offence- against the respondents has been established beyond reasonable doubt. The learned trial Court while considering and discussing the prosecution evidence has given valid reasons for the acquittal of the respondents, and I see no reason to differ from the view taken and the conclusion reached by him which is based on proper consideration and appreciation of evidence. Normally in a case of acquittal there should be no interference unless the lower court has committed any -17- glaring illegality or has failed to consider any material evidence, or has not appreciated the evidence in accordance with law.” 43. It has been held in the case of Shri Litin Chandra Das & Anr. Versus The State of Assam reported in (1989) 3 Crimes (HC) 483 at para -5 and 7 as follows:- “Para-5:- I have considered the submissions of Mr. J.M. Choudhury, the learned Counsel for the petitioners. Also heard Mr. D. Goswami the learned Public Prosecutor. I have gone through the evidence of the witnesses and the orders of the Courts below. In order to properly appreciate the submissions made on behalf of the petitioners it is necessary at this stage to examine the relevant provisions of the Act and the scheme thereof. Section 3 Of the Act (so far as it is relevant) provides for penalty for unlawful possession of Railway property. It reads: "3. Penalty for unlawful possession of Railway property - Whoever 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 possession lawfully be punishable. "Railway property" has been defined In Clause (d) of Section 2 of the Act as follows: "(d) "Railway property includes any goods, money or valuable security or animal, belonging to, or in the charge or possession of, a Railway Administration," From a plain reading of Section 3 of the Act is clear that in order to hold a person guilty of an offence three requirements must be fulfilled. These are-(i) the property must be "Railway Property", (ii) the accused person must be found or proved to have been in possession of such Railway property", (iii) it should reasonably be suspected of having been stolen or unlawfully obtained. The prosecution must prove the existence of all the above three conditions. A careful reading of the aforesaid provisions makes it aboundantly clear that in order to convict a person under Section 3 of the Act, it must be prosecution that he was in possession of Railway property". The definition of "Railway property makes it be -18- established by the clear that in order to claim any property as 'Railway property' it must be proved that the property in question belonged to the Railway Administration or was in the chare or possession of the Railway Administration. It must be so at the relevant time. There are many properties belonging to the Railway Administration which are disposed of by it from time to time by public auction or by various other means, the same being either unserviceable or surplus. These are purchased by various persons and thereafter they enter into the main distribution system and reach various individuals who may buy them from the market in the usual course for their personal use. Such goods may also even bear the Railway emblems or other markings. There are also cases where the Railway administration purchases goods from various private manufacturers nd in course of supply rejects some of the goods supplied as sub-standard the manufacturers in the usual course in the market. These are some of the instances where a property which may even bear some marks or sign to show that it was at one point of time 'Railway property or intended to be Railway property was not Railway property at the relevant time. It is for the prosecution to prove by positive evidence that the property was "Railway property and that the accused person was found in possession of such property. The burden of proof that the property was Railway property does not shift to the accused. Once this burden is discharged, the prosecution is further required to prove that it could be reasonably suspected to have been stolen or unlawfully obtained. The expression" reasonably suspected" is very significant, suspicion implies a belief or opinion based upon the facts or circumstances which do not amount to proof. "Reasonably" means in a reasonable manner or consistently with reason. Thus the prosecution must have some facts or circumstances before it on the basis of which it could acting in a reasonable manner, believe that the person concerned found in possession of such Railway property' might have stolen or unlawfully obtained the same. Such reasonable suspicion has to be proved before the court by the accused to prove that the "Railway property came into his possession lawfully. Section 3 of he Act does not require in all cases the accused persons to come forward and adduce evidence as to how the property in question was obtained by him. It is in fact a defense made available -19- to the accused once the prosecution succeeds in proving its case. Para-7:- I have considered carefully the submissions of Mr. Choudhury. There is considerable force in the submission. There is no satisfactory material or evidence on record to prove that the rice alleged to have been found with the petitioners was the same rice that was contained in the 'Railway wagons or in other words it was 'Railway property'. Rice is an item of common use. Rice similar to one contained in the Railway wagon was available freely in the market It was the duty of the prosecution to prove that the rice found in possession of the petitioners was the rice stolen from the Railway wagon and that should have been proved by adducing cogent and satisfactory evidence to that effect. In the instant case there is no material to hold that the rice found with the accused persons was Railway property. Taking the totality of evidence, I am of the opinion that the prosecution has failed to establish its case against the accused persons beyond reasonable doubt.” 44. It has been held in the case of State of Orissa Versus Prahallad Rath reported in 2007 0 CrLJ 1189 at para – 4 and 5 as follows:- “Para-4:- P. Ws. 1 and 4 are the officers of the railway Protection Force, who got information and caught hold of the accused dhaneswar at Nirakarpur Railway Station while carrying 35 ltrs. of high speed diesel oil in a plastic jar kept in a gunny bag. P. W. 1 in his evidence has stated that after they got information about the said transaction, in order to detect, they kept themselves concealed on the off side of the generator coach and noticed that accused Ragunath samantray and Prahallad Rath gave indication to Dhaneswar to come to the generator coach and when the accused-Dhaneswar went to the generator coach, the two accused person gave him one gunny bag, which was being carried by Dhaneswar on his shoulder. At that point of time, he and P. W. 4 apprehended the accused- Dhaneswar and found that 35 ltrs. of high speed diesel oil had been kept in a plastic jar inside the gunny bag. The witness further stated that on interrogation, the accused Dhaneswar confessed before them that he had obtained the high speed diesel oil from other two co-accused persons on payment of Rs. 80/- as bribe. This witness has further stated that though the -20- occurrence took place on 12-6- 1985, he came back to Nirakarpur Railway station on 13-6-1985, went to R. P. F. Post, khurda Road along with the accused-Dhaneswar, lodged written report in the police station and seized the oil. P. W. 2 is the S. L. of Police in whose presence seizure of diesel oil was made, P. W, 3 is also S. 1. of railway Protection Force who took sample of half-liter diesel from the jar for expert's opinion. P. W. 4 is the witness, who accompanied p. W. 1 to Nirakarpur Railway Station and caught hold of the accused-Dhaneswar while carrying the. high speed diesel oil. This witness in his evidence has supported the stand taken by P. W. 1. P. W. 5 was working as T. L. M. at Khurda Road. In his evidence, he has stated that on 14-6-1985, the sample was collected from the jar for the purpose of examination. P. W. 6 is the Superintendent of Laboratory, Railways, visakhapatnam, who has stated in his evidence that the sample sent for examination was a high speed diesel oil. P. W. 7 is the a. S. 1. R. P. F. Post, Khurda who has stated in his evidence that the accused Dhaneswar confessed before him that he had purchased the high speed diesel oil from the staff on duty in the generator coach. On analysis of the evidence of the prosecution witnesses, it appears that on 12-6-1985, the accused- Dhaneswar was caught by P. Ws. 1 and 4 while carrying the high speed diesel oil in a black plastic jar kept in a gunny bag. Though it was possible on the part of the office of P. Ws. 1 and 4 to lodge an F. 1. R. on the very same day, the written report was submitted on the next date on 13-6-1985. It is, therefore, clear that the accused-Dhaneswar was kept in Nirakarpur Railway Station from 12th till the next date and was taken to khurda R. P. F. post for the purpose of submission of a written report, Though P. W. 3 stated that he had taken half liters of high speed diesel oil as sample out of the said jar for the purpose of examination on 13-6-1985, p. W. 5 in his evidence stated that the sample has taken on 14th June. 1985 and there is a clear discrepancy in evidence of P. Ws. 3 and 5 with regard to the date of taking sample for the purpose of examination. There being no dispute that seizure took place in Khurda Railway Station, it cannot be said that independent witnesses were not available to be examined. No witnesses on behalf of the prosecution has stated that independent witnesses were not available to be made part of the investigation. This has not been done since the F. I. R. was never lodged on the date when the accused-Dhaneswar was found with high speed diesel oil. Admittedly, on 12th June, 1985 the accused-Dhaneswar was [bund with the high speed diesel oil and F. 1. R. -21- was lodged on the next date and only after lodging the F. 1. R. the seizure of the diesel oil was made. It was open for the P. Ws. 1 and 4 to take the help of one or two persons available in the Railway station as independent witnesses but the same was not done. Now, only evidence available before this Court is the fact of seizure of high speed diesel oil from accused- Dhaneswar and his confessional statement before the three prosecution witnesses. In absence of independent witnesses, the Court can always rely upon the evidence of official witnesses, provided they are reliable and trustworthy. In this case, though accused-Dhaneswar was caught by P. Ws. I and 4 carrying the high speed diesel oil on 12th of June, 1985, no F. I. R. was lodged on the same day, no independent witness was examined on the same day and no seizure was also made on the same day. Only on the next date, an F. 1. R. was lodged and seizure was made. Admittedly, the seizure was made in the Khurda Railway Station and independent witnesses could have been examined to support the seizure. That was also not done. As stated earlier, there is variation between the evidence of P. Ws. 3 and 5 with regard to the date of collection of sample for the purpose of examination. In view of such evidence, it will be unsafe to convict an accused persons only on evidence of such official witnesses. Apart from the above, admittedly the accused-Dhaneswar was taken from Nirakarpur to Khurda Road and his confessional statement was recorded in khurda R. P. F. Post. In this connection, a decision of this Court reported in 1983 Cri lj NOC 188 is relevant. In the said decision, the accused was taken to the R. P. F. Post where his confession was recorded. The said confession was denied by the accused at a later stage. Under the circumstances, the Court held that Railway Protection Force officer-in-Charge of Post inquiring into an alleged offence by an accused under S. 3 (a)of the Act is not a Police Officer and confession alleged to have been made by the accused before him is admissible in evidence under S. 25 of the Evidence Act, yet where the evidence showed that an accused was forcibly taken to R. P. F. Post where he was alleged to have made the confession and the accused later denied such confession, no reliance can be placed on such confession for the purpose of conviction. While deciding the case in the above manner, this Court also relied on a decision of the Apex Court, reported in 1980 Cri LJ 1424 (SC). Para-5:- So far as other two co-accused persons are concerned, the only evidence against them is the confession of Dhaneswar. Since I have found -22- that no reliance can be placed on the confession of Dhaneswar because of the circumstances under which it was recorded, there is no other evidence against the other two accused persons and accordingly they cannot be convicted of the charge. In view of the discussions made above, I do not find any merit in the appeal and is accordingly dismissed. Appeal dismissed.” Ext.-6 is the Site Plan, Ext.-7 is Joint Note dated 28.12.2011 prepared by P.W.-5, 45. 46. Ashish Kumar Kuntia, and P.W.-4, Shishir Kumar with regard to three missing cable of 12 core PVC Signalling cable each 40 Metre Railway. 47. However, perusal of Ext.-7, it would appear that it was prepared on a plain paper and it was not reported to any officer and even no complaint was instituted with regard to missing Railway Cable on 27.12.2011. 48. This report has also signed by P.W.-4, Shishir Kumar and P.W.-5, Ashish Kumar Kuntia, and whose signature marked as Ext.- 7/1 and Ext.-7/2 respectively. However, Ext.-7 is completely appears to be manufactured document and no prudent person would believe such joint note, even as it does not disclose that as to whom the said joint note was referred to which Authority of Railway. It does not bear initial note pad of neither P.W.-4, Shishir Kumar nor P.W.-5, Ashish Kumar Kuntia. 49. Ext. 8 is Enquiry Report dated 05.07.2012 submitted by the Enquiry Officer i.e. P.W.-4, Shishir Kumar stating therein that the petitioners were arrested on 09.01.2012 with regard to stolen Railway signal cables of Bridge No. 238 on 27.12.2011. 50. Ext. 9 is Expert Opinion prepared by P.W.-5, Ashish Kumar Kuntia and had opined that seized materials are exclusively Railway material and it was unserviceable condition. -23- 51. From perusal of Ext.-9, it appears that the Approx. 120 Railway Signal cable of 12 core in 45 pieces of different sizes in burnt condition with PVC insulation were produced before him for investigation. However, it was not disclosed as to how, the said seized material were marked because the seized articles were not produced in sealed condition even P.W.-5, Ashish Kumar Kuntia has not mentioned about mentioning of labels marked as Ext.-2 and Ext.-3 respectively for the seized articles. Thus, even report has been given in plain white paper. Therefore, report is also not relied upon. 52. It further transpires that neither the complainant i.e. P.W.-1, Rajat Ranjan nor the Enquiry Officer i.e. P.W.-4, Shishir Kumar had stated that as to who had informed about the missing of Railway Cables from Bridge No. 238/268 and they had not examined any person in support of such missing cables. 53. Thus, the prosecution case suffers from lacuna and there are several inconsistencies and contradictions in the prosecution case. It further transpires that no independent witnesses have been examined by the complainant or by the Enquiry Officer and non- examination of independent witnesses makes prosecution case doubtful and suspicious. It transpires that P.W.-2, Sujit Kumar Sarkar and P.W.-3, Nripen Chandra Basak are the constables and they are influenced by the complainant i.e. P.W.-1, Rajat Ranjan and as such, their evidence cannot be relied upon. 54. Therefore, in view of the above, the judgment dated 05.06.2017 passed in Criminal Appeal No. 33 of 2015 by the learned Principal Sessions Judge, Sahibganj and the judgment of conviction and order of sentence dated 27.03.2015 passed by Sri Anand Mani Tripathi, learned Railway Judicial Magistrate, 1st Class, (Railway) Sahibganj in R. P. S. Case No. 01 of 2012 corresponding to T. R. No. -24- 47 of 2015 by which the petitioner-Binod Madaiya @ Binod Maraiya in Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., the petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. in Cr. Revision No. 1644 of 2017 have been convicted for the offences under Section 3 (a) of R. P. (U.P.) Act and have been sentenced to undergo R. I. for a period of two (2) years each for the offence under Section 3 (a) of R. P. (U.P.) Act are set aside. 55. The petitioner-Binod Madaiya @ Binod Maraiya of Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., the petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. of Cr. Revision No. 1644 of 2017 are acquitted from the charges for the offences under Section 3(a) of R. P. (U.P.) Act and the petitioner-Binod Madaiya @ Binod Maraiya of Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., the petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. of Cr. Revision No. 1644 of 2017 are discharged from the liability of their bail bonds. 56. Accordingly, these Criminal Revision No. 1639 of 2017 and Criminal Revision No. 1644 of 2017 are allowed. Kamlesh/N. A. F. R. (Sanjay Prasad, J.) -25-
Arguments
In Criminal Revision No. 1639 of 2017, learned counsel for the petitioner has submitted that the impugned Judgments and order of sentence passed by the learned Courts below are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the impugned judgment and order of conviction and sentence passed by the learned Courts below are liable to set aside by this Court. It is submitted that no independent witness of the seizure list has been examined rather the seizure list witnesses are member of police party. The place of occurrence is near the Railway Bridge no. 237 and hence the denial of the prosecution with respect non-availability of independent seizure list witnesses is highly doubtful which clearly goes to the root of the prosecution case. It is submitted that the prosecution had not examined even single independent witnesses and all witnesses examined are member of raiding party and they have made contradictory statement to each other. It is submitted that nothing has been recovered from the possession of the petitioner. It is submitted that the petitioner is a young man and has been falsely implicated in this case with ulterior motive. It is submitted that all the prosecution witnesses have given contradictory statement and they cannot be relied upon and as such, their evidence is liable to be -3- rejected. It is submitted that the defence version has not been considered properly. The case of the defence is total denial of the occurrence and false implication by the informant party with ulterior motive. One defence witness namely Ranjit Mal Pahariya has been examined as D.W. I who has supported the case of the defence and stated that the petitioner was arrested by the police force outside from village and has been falsely implicated in this case. The place of occurrence is near bridge no. 237 in between Pakur and Tilbhita Railway Station. The story of non-availability of the independent witness is not tenable. It is submitted that alleged articles have not been recovered from possession of the petitioner rather it has been seized from Railway Bridge no. 237 and as such, the impugned judgments and sentence passed by the learned Courts below may be set aside and this Criminal Revision Application may be allowed. 5. In Criminal Revision No. 1644 of 2017, learned counsel for the petitioners has submitted that the impugned Judgments and sentence passed by the learned Courts below are illegal, arbitrary and not sustainable in the eye of law. It is submitted that no independent witness of the seizure list has been examined and the seizure list witnesses were the member of police party. The place of occurrence is near the Railway Bridge no. 237 and hence the plea of prosecution with respect to non-availability of independent seizure list witnesses is highly doubtful. It is submitted that the prosecution has not examined any independent witnesses in this case and all witnesses examined were member of raiding party and they had given contradictory statement to each other. It is further submitted that nothing has been recovered from the possession of the petitioners. It is submitted that the petitioners have not been properly examined under Section 313 of Cr. P. C. It is submitted that the petitioners are labourers and they had no knowledge about the railway property and -4- they have arrested from the outside of village. It is submitted that the judgment rendered in the case of State Versus Akbar Khan reported in 1979 1 MPWN 197 and the judgment rendered in the case of Shri Litin Chandra Das & Anr. Versus The State of Assam reported in 1989 3 Crimes (HC) 483 and the judgment rendered in the case of State of Orissa Versus Prahallad Rath reported in 2006 (0) Supreme (Ori) 681, no offence under Section 3 (a) of R. P. (U.P.) Act, 1966 is made out and as such, the impugned judgments and sentence passed by the learned Courts below may be set aside and this Criminal Revision Application may be allowed. 6. On the other hand, the learned APP, in both these Criminal Revision Applications, has submitted that the impugned judgments and sentence passed by the learned Principal Sessions Judge, Sahibganj and the Trial Court below are fit and proper and no interference is required by this Court. It is submitted that the learned Courts below have rightly convicted both these petitioners i.e. the petitioner-Binod Madaiya @ Binod Maraiya in Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., the petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. in Cr. Revision No. 1644 of 2017 for the offences under Section 3(a) of R. P. (U.P.) Act and proper sentences have been awarded against them. It is submitted that P.W.-1, Rajat Ranjan is the complainant- informant and he had fully supported his case and he had recovered 45 pieces of cables and three (3) pieces of cables intact with plastic. It is submitted that P.W.-2, Sujit Kumar Sarkar and P.W.-3, Nipendra Chandra Basak have fully supported the case and they are the eyewitness of the occurrence and the complainant- informant, Rajat Ranjan has been examined as P.W.-1. They have also proved their signature on the seizure list marked as Ext. -1/1, Ext. 1/2, Ext.-2/1, Ext.-2/2, Ext.-3/1 and Ext.-3/2 respectively. It is -5- submitted that P.W.-4, Shishir Kumar is the Inquiry Officer and he has found the allegation true against petitioners and has proved recovery of articles from the petitioners. He also proved the joint inspection report dated 28.12.2014 as Ext.-7 and his signature as Ext.-7/1. He also proved the confessional statement of the petitioners marked as Ext.-5 to 5/3 respectively. He has proved his signature on the seizure list as Ext.-1/3 and labels as Ext.-3/3. He has further proved his Prosecution Report dated 06.07.2012 marked as Ext. -8. Thus, P.W.-4, Shishir Kumar has supported and corroborated the prosecution version. It is submitted that P.W.-5, Ashish Kumar Kuntia is Section Engineer and who is an expert and has proved his Expert Opinion as Ext. -9. He has proved his signature on labels marked as Ext.-2/4 and Ext.-3/4 and has proved his signature on Joint Note dated 28.12.2011 marked as Ext.-7/2. Thus, all the prosecution witnesses have fully supported the prosecution case and thus, the learned Courts below had committed no illegality by convicting these petitioners. It is submitted that independent witness was not required to be examined as there was no independent witness where the seizure was made as it was a lonely place. It is submitted that non examination of independent witness is not fatal to the prosecution case. It is submitted that the accused persons had committed theft of Railway Property. It is submitted that the above judgments cited by the learned counsel for the petitioners are not applicable in the facts and circumstances of the case and hence, the impugned judgments and sentence are fit and proper and no interference is required by this Court and both the above Criminal Revision Applications may be dismissed. 7. Perused the Lower Court Records and considered the submissions of both the sides. 8. It transpires that P.W.-1, Rajat Ranjan had lodged the complaint -6- on 09.01.2012 and arrested four (4) persons who were alleged to burning some signaling cables. It transpires that P.W.-4, Shishir Kumar, after investigation, has submitted his Inquiry Report on 05.07.2012 Marked as Ext.-8. 9. It transpires that the charges were framed against the petitioner on 29.11.2013 under Section 3 (a) of R. P. (U.P.) Act. 10. It transpires that the prosecution got examined five (5) witnesses, who are as follows:- (i) P.W.-1 is Rajat Ranjan i.e. the complainant. (ii) P.W.-2 is Sujit Kumar Sarkar, (iii) P.W.-3 is Nripen Chandra Basak, (iv) P.W.-4 is Shishir Kumar, i.e. the Enquiry Officer and (v) P.W.-5 is Ashish Kumar Kuntia. 11. The prosecution has got marked the following documents as the Exhibits:- (i) Ext-1 is the seizure list, (ii) Ext. 1/1, 1/2 & 1/3 are the Signatures of P.W.-2, P.W.-3 & P.W.4 on Seizure-list respectively, (iii) Ext-2 to 2/4 & Ext.-3 and 3/4 are Signatures of P.W.1, 2, 3, 4 & 5 on both labels respectively, (iv) Ext- 4 is written Complaint, (v) Ext- 5 to 5/3 is Statement of accused Maimul Sk. Marful Sk., Binod Madaiya and Makbul Sk. Respectively, (vi) Ext.-6 is the Site Plan, (vii) Ext.-7 is Joint Note dated 28.12.2011, (viii) Ext.7/1 & 7/2 are Signatures of P.W. -4 & 5 respectively on Joint Note dated 28.12.2011, (ix) Ext. 8 is Prosecution Report, (x) Ext. 9 is Expert Opinion, -7- 12. The prosecution also got the material exhibits :- (i) Material Ext. I is the 3 pieces railway signaling cables and (ii) Material Ext. II is the 47 pieces railway signaling cables. 13. It transpires that the petitioners were examined under Section 313 of the Cr. P. C. on 16.01.2015 by learned Court below and the petitioners have denied the circumstances put forth before them. 14. Defence, in support of his case, had got examined one witness namely Ranjit Mal Pahariya as D.W.-1. 15. However, no document has been marked on behalf of the appellant as Exhibits. 16. Thereafter the learned Court below has convicted the petitioners for the offences under Section 3 (a) of R. P. (U.P.) Act and they had been sentenced to undergo R. I. for a period of two (2) years each for the offence under Section 3 (a) of R. P. (U.P.) Act and the learned Appellate Court has affirmed the judgment of conviction and order of sentenced passed by the leaned Trial Court. Hence, both Criminal Revision Applications have been filed. 17. Hence appreciation of evidence of prosecution witnesses is necessary. 18. P.W.-1 is Rajat Ranjan i.e. complainant- informant, who has stated during his evidence that on receiving information of theft of cable on 27.12.2011, he had conducted raid on 09.01.2012 along with Sub-Inspector- Shishir Kumar i.e. P.W.-4, Head Constable-Sujit Kumar Sardar i.e. P.W.-2, Constable- N. C. Basak i.e. P.W.-3, Constable-H.S. Kumar, Constable-Ajay Kumar Yadav, Constable- Kishan Murmu and CIB Team in the leadership of Inspector D. K. Basu, C.I.B. and they proceeded, Kola Pahari situated near Bridge Tilbhita Railway Station and they had made ambush at Bridge Number-238. After some time, they saw that some persons in -8- suspicious activities and they had seen further that four persons were keeping burnt signal cables and some articles in plastic bag and all the four persons were apprehended, who had disclosed their name i.e. the petitioner Binod Madaiya @ Binod Maraiya in Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. respectively. The petitioners could not produce any paper in support of recovery of articles and disclosed that they had concealed some part of burnt cable, which were stolen from Bridge No. 237 on 27.12.2011 and after inspection they found burnt copper cable in 45 pieces, 3 pieces kept in plastic bag. Thereafter, seizure list was prepared in his written signature marked as Ext.-I, but his signature on label on three pieces cables marked as Ext.-2. He further proved his signature on label with regard to 45 pieces burnt copper wire as Ext.-3 and all burnt 45 pieces of cable were marked as Material Ext.-II collectively. He has further proved his writing and signature on the complaint Marked as Ext.-4. 19. The Cross-examination of this witness was declined by the defence before charge. However, after charge, witness was cross- examined and P.W.-1, Rajat Ranjan, during his cross-examination, stated and admitted that seized wire do not contain the Marka of Railway. However, he assessed this fact on the basis of theft cable stolen from Railway. He admitted that no person has been made witness in the seizure list and on his own, he stated that it was a deserted place. 20. Thus, from the scrutinizing the evidence of P.W.-1, Rajat Ranjan i.e. the complainant, it is evident that he had recovered 45 pieces of cable wires do not contain the Marka of Railway. He also admitted that no independent witness was examined. He also stated that the said cables were stolen on 27.12.2011 from Bridge No. 237, -9- but it was recovered on 09.01.2012.Therefore there is a gap between the said intervening period and he could not explain or disclose the name of any person from whom he learnt that the said burnt cable were stolen on 27.12.2011 from Bridge No. 237. Thus, evidence of P.W.-1, Rajat Ranjan is not reliable. 21. P.W.-2 is Sujit Kumar Sarkar, who is said to be the eye witness and stated that under the leadership of D. K. Basu, CIB Inspector, the informant, Rajat Ranjan, Inspector, Pakur, Shishir Kumar, Sub-Inspector he along with other staffs left for Tilbhita- Pakur and arrived near the Bridge No. 268 on receiving certain information and they had seen after watching that some persons in suspicious condition they surrounded and recovered burnt cable pieces and three pieces of insulators were also found. The arrested persons disclosed their name as Binod Madaiya @ Binod Maraiya in Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., the petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. in Cr. Revision No. 1644 of 2017 and they failed to produce any paper. Thereafter, seizure list was prepared and he identified the signature on the seizure list marked as Ext.-1/1. He put his signature on the label Marked as Ext.-2/1 and 3/1 respectively. 22. The cross-examination of this witness was declined by the defence before charge. However, after charge, witness was cross-examined and P.W.-2, Sujit Kumar Sarkar, during his cross- examination, stated that prior to their arrival, some persons were found standing by keeping some articles in the Box and they were apprehended after five minutes after their arrival. Miscreants could not fled away as they had surrounded them, but he cannot say as to which person caught whom. He denied the suggestion for implicating the petitioners as they were mere labourers. -10- 23. Thus, from scrutinizing the evidence of P.W.-2, Sujit Kumar Sarkar, it is evident that he was also constable in RPF and under the influence of P.W.-1, Rajat Ranjan i.e. the complainant. He has also admitted that all the persons were apprehended and they were not the labourers. However, from scrutinizing the evidence of P.W.-2, Sujit Kumar Sarkar, it is evident that all the accused persons were apprehended by the informant party. Thus, the evidence of P.W.-2, Sujit Kumar Sarkar is not reliable. 24. P.W.-3 is Nripen Chandra Basak, who is also Constable in RPF and had stated that he along with Inspector Rajat Ranjan, Sub- Inspector-Shishir Kumar, Sub-Inspector S. K. Sarkar, H.S. Kumar, A. K. Yadav and Others and had gone to the Bridge No. 268 situated between Tilbhita and Pakur and had seen four persons at a distance of 300 metres in suspicious condition. Then they surrounded and apprehended them and they noticed that there were holding the Railway Signal cables. Miscreants could not produce any paper and all the petitioners i.e. Binod Madaiya @ Binod Maraiya in Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., the petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. in Cr. Revision No. 1644 of 2017 were arrested. He identified his signature as Ext.-1/2 on the seizure list. He also identified his signature on the label of the articles, Marked as Ext.-2/2 and Ext.-3/2. 25. This witness was cross-examined after charge and who stated that the informant and others were hiding in the canal at the distance of 300 Yards and could not be seen from outside. He did not see any persons while coming the place of occurrence. He claimed to have surrounded the accused from the western side, but he could not say, who had surrounded the accused persons eastern side, northern side and southern side. The accused could not flee -11- away as they were engaged in handling work. He also admitted that cable did not contain Railway Marka. 26. Thus, from scrutinizing the evidence of P.W.-3, Nripen Chandra Basak, it is evident that seized articles did not contain Railway Marka. It also reveals that the accused persons have not tried to flee after seeing the RPF Personnel. Thus, it is evident that P.W.-3, Nripen Chandra Basak is an interested witness as he is under the influence of P.W.-1, Rajat Ranjan. 27. P.W.-4 is Shishir Kumar and who is Sub-Inspector and Enquiry Officer of this case. He stated that he conducted raid on 09.01.2012 as they had learnt on 27.12.2011 that 120 metres of signal cable in three pieces were stolen and length of each pieces is around 40 Metres. He along with Inspector, RPF. R. Ranjan, Head constable S.K. Sakchi, Constable S. K. Yadav and Constable K. Murmu and Officers of CIB, Howrah-II along with Local Police Station had arrived at Tilbhita Kolapahari at 9.35 AM in the morning, which was situated between Pakur and Tilbhita Railway Station. Thereafter at around 11.35 A.M., they arrived at Bridge No. 238 and then they had seen that some persons in suspicious condition at a distance of 300 metres in West Direction in the Canal and then they surrounded them and thereafter they had recovered 45 pieces of burnt cable of 12 Core and Three Piece of Cable insulation. During interrogation, the miscreants disclosed that they had stolen on 27.12.2011 from the Bridge between Pakur and Tilbhita and they had concealed it there and had arrived today for taking these articles. However, he could produce any paper in support of the said articles thereafter he had arrested all the petitioners i.e. Binod Madaiya @ Binod Maraiya in Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., the petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. in Cr. Revision -12- No. 1644 of 2017. 28. Then, seizure list was prepared by R. Ranjan and he also identified his signature on the seizure list marked as Ext.-1/3. He also proved his signature on label marked as Ext.-2/3 and Ext.-3/3 respectively and brought the miscreants to the post and then the case was instituted and he was handed over the investigation of this case. Thereafter, he recorded the confessional statements of the petitioners i.e. Binod Madaiya @ Binod Maraiya in Cr. Revision No. 1639 of 2017 and the petitioner no. 1 Maimul Sk., the petitioner no. 2, Marful Sk. @ Murful Sk. @ Marful Saikh and the petitioner no. 3, Makbul Sk. in Cr. Revision No. 1644 of 2017, which were marked as Ext.-5, Ext.-5/1, Ext.-5/2 and Ext.-5/3 respectively. Thereafter he inspected the Place of Occurrence along with Constable N. C. Basak and prepared site plan in his writing and signature marked as Ext.-6. Thereafter, he obtained theft report and copy of Joint Inspection Note from Section Engineer Signal Pakur. Joint note of theft was prepared in his presence and he along with Signal Engineer i.e. P.W.-5, Ashish Kumar Kuntia had prepared the Joint Note and has proved his Joint Note as Ext.-7 and proved his signature as Ext.-7/1. Thereafter, he recorded the statement of all the witnesses. Thereafter, he obtained the Expert Opinion of the seized articles and finally he submitted prosecution report in his writing and signature marked as Ext.-8. 29. Cross-examination of this witness was declined by the defence before charge. However, after charge, witness was cross-examined and P.W.-4, Shishir Kumar, during his cross-examination, stated that report was made on 27.12.2011 regarding theft of cable and its case was registered in the localized case, but he had not mentioned this fact during his investigation. He has not mentioned during his evidence for going to the place of occurrence between 27.12.2011 to -13- 10.01.2012, but he has mentioned the boundary. He also stated that population was far away. He admitted to have not mentioned during investigation that since when the articles were burnt. He admitted that there is no witness except RPF employee and he on his own says that the place was no man area. 30. Thus, from scrutinizing the evidence of P.W.-4, Shishir Kumar, it is evident that he was not only the member of raiding team along with Inspector, RPF. R. Ranjan, but also the Enquiry Officer of this case. He admitted that there is no witness except RPF employee. He also admitted that Basti was far from the place of occurrence. He also admitted that theft cable stolen on 27.12.2011 was instituted as localized case. Therefore, it is evident that on 27.12.2011, no case was instituted by the Railway Personnel regarding the theft of cable and for the first time, the said fact of theft of cable from Bridge No. 238 has been stated in the complaint as well as in the charge sheet. It is also own admission of the Enquiry Officer that there was no independent witness and all the witnesses are RPF personnel. Thus, evidence of P.W.-4, Shishir Kumar is not reliable as he was the member of the raiding party and he had justified the submission of the charge sheet. 31. P.W.-5 is Ashish Kumar Kuntia, who is Section Engineer and has stated during his evidence that he had attended RPF Post Pakur on requisition of Sri S. Kumar on 28.02.2012. There was 120 metres Railway Signal Cable of 12 core in 45 pieces of different size and which were in burnt condition. However, three pieces of cable of different seized (PVC) were also produced and he examined the same and found that it was a Railway Property and not available in open market and it was not in serviceable condition and the said articles were admitted in the burnt condition. He admitted his writing and signature on opinion marked as Ext.-9. He has proved his -14- signature on label Marked as Ext.-2/4 and Ext.-3/4 respectively. He also proved his signature on the Joint Note dated 28.12.2011 marked as Ext.- 7/2 and he prepared the said Joint Note with SI. RPF, S. Kumar, which was prepared with regarding to failure of Tilbhita Railway Station. 32. Cross-examination of this witness was declined by the defence before charge. However, after charge, witness was cross- examined and P.W.-5, Ashish Kumar Kuntia, during his cross- examination, stated and admitted that there was no Marka of Railway on PVC wire. He admitted that PVC wire is supplied by several companies, but he cannot say that the said wires were supplied by which company. He again admitted that there was no Marka on burnt cable/wire. He also admitted that Railway does not prepare wire/cable, rahther Railway purchases from the company. He has no proof that wire is supplied only to Railway and it is not supplied to private. He again admitted that if he is given 10-20 burnt wire then he will not be able to say as to which wire belong to which Railway. He has not mentioned in his joint note as to which vehicle (Train) was detained and RPF had not written anything relating to detention. He had only investigated the wire handed over by RPF. He, by his guess, has stated that wires were stolen from whom. 33. Thus, from scrutinizing the evidence of P.W.-5, Ashish Kumar Kuntia, it is evident that though he is an Expert witness, but he admitted that he had prepared the Joint Note. He also admitted that there was no Railway Marka on the said burnt cables. He also admitted that he cannot say the name of the Company from which the recovered cables were supplied. Therefore, evidence of P.W.-5, Ashish Kumar Kuntia is not reliable. 34. Ext-1 is the seizure list, -15- 35. Ext. 1/1, 1/2 & 1/3 is Signatures of P.W.-2, Sujit Kumar Sarkar, P.W.-3, Nripen Chandra Basak and P.W.-4, Shishir Kumar on Seizure-list respectively, 36. 37. Ext.-2 is the complaint instituted by P.W.-1, Rajat Ranjan Ext.-2/1, Ext.-2/2, Ext.-2/3 and Ext. 3/1 are the signatures on the label. 38. It transpires that Ext.-2/1, Ext.-2/2 and Ext.-2/3 contains the same signature of P.W.-1, Rajat Ranjan, P.W.-2, Sujit Kumar Sarkar, P.W.-3, Nripen Chandra Basak and P.W.-4, Shishir Kumar on the plain white sheet and does not mention the name of any articles. 39. Ext.-4 is written complaint. 40. Ext.- 5 to 5/3 are confessional statements of the accused- petitioners. 41.