Punjab-Haryana High Court
State Through Senior Security ... vs Ram Lal And Another on 17 January, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.625-SBA of 2002
Date of decision: 17th January, 2012
State through Senior Security Commissioner,
RPF, Rail Coach Factory, Kapurthala
... Appellant
Versus
Ram Lal and another
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Puneet Jindal, Advocate with
Ms. Anubhuti Walia, Advocate for the appellant.
Mr. J.S. Maanipur, Advocate for the respondents.
KANWALJIT SINGH AHLUWALIA, J.
Present appeal has been filed by the State through Senior Security Commissioner, Railway Protection Force, Rail Coach Factory, Hussainpur, District Kapurthala against the acquittal of accused Ram Lal and Nazar Singh recorded by the Court of Chief Judicial Magistrate, Kapurthala vide impugned judgment dated 27th August, 2001.
A complaint was filed by ASI Amarjit Singh, Incharge Police Post, Railway Protection Force, Rail Coach Factory, Hussainpur; wherein it was stated that on 21st July, 1995 he (ASI Amarjit Singh) along with HC Om Parkash Sharma and Constable Randhir Singh, at about 2.05 a.m. had left the Police Post for patrol duty. When they reached in front of the main gate of Rail Coach Factory, they started checking the vehicles of the employees. At that time, HC Ashok Kumar and Constable Ajit Sigh were also present at the main gate. They were Criminal Appeal No.625-SBA of 2002 2 on duty from 1.00 a.m. to 9.00 a.m. as after the night shift, the workshop used to close down at 2.15 a.m. During checking the police party saw that a jeep bearing registration No.DID-6579 colour grey was coming out of the factory gate. On suspicion the same was stopped at the main gate and during checking when the rear door of the jeep was opened it was found that on the rear seats, seven aluminum plates were lying. An enquiry was made from the driver of the jeep regarding the same but he could not produce any document for taking those aluminum plates out of the factory. On interrogation, he disclosed his name as Ram Lal son of Sakhan Lal. When the plates were checked, each of them was found 5'-6" in length, 16" in breadth and 2mm in thickness. The goods recovered were taken into possession vide a separate memo. From the above facts, it was found that the accused had kept the Government property in his possession unlawfully and had committed an offence punishable under Section 3 of the Railway Property (Unlawful possession) Act, 1966 (hereinafter referred to as, 'the Act'). Therefore, the accused was arrested and the Government jeep bearing registration No.DID-6579 along with its log-book was taken into possession after obtaining the signatures of the witnesses on the memo. After the personal search of the accused was carried, the accused during interrogation disclosed that he had taken these aluminum plates from the stock (heap) of aluminum plates lying near the Furnishing Progress Store and he could identify that place. He further disclosed that 2-3 days before he had sold three aluminum plates to a scrap dealer (Kabaria) and had received Rs.75/- from him. A memo of confession was recorded. Furthermore, the accused as per his disclosure in custody led the police party in front of the Furnishing Progress Store and pointed Criminal Appeal No.625-SBA of 2002 3 towards the stock (heap) of aluminum plates and told that he had committed theft from that stock. One aluminum plate from the stock was taken as a sample, which was about 5'-6" in length, 16" in width and 2mm in thickness. Chits were pasted on the goods recovered and a rough site plan of the spot was also prepared. As per the statement made by accused Ram Lal in custody of Railway Protection Force, he accompanied the police party, which included a constable from the civil police, to the old grain market and stopped the jeep in front of the shop of a scrap dealer (Kabaria) and disclosed that three days ago he had sold the three aluminum plates to that scrap dealer. The person sitting on the shop of scrap dealer disclosed his name as Nazar Singh. In the presence of two witnesses namely Bhajan Singh and Chander Mohan, who were neighbourers of the scrap dealer, search of the shop was conducted and 132 plates made of aluminum having length of 11.2" and holes toward both ends, which were used in the windows of Rail Coaches, were recovered along with two small hooks having small holes in them for using in the Rail Coaches and one frame made of aluminum meant for Rail Coach windows. The plates were weighed as 6 kgs and 900 gms. All the aluminum plates were put in a gunny bag and the same was sealed with a seal bearing impression 'MRK'. The remaining aluminum plates and hooks weighing 2 ½ kgs were put into a separate gunny bag. Accused Nazar Singh was also interrogated. The investigating officer got the recovered property verified from Davinder Kumar Chargeman, Furnishing Shop and Narinder Kumar, Chargeman, Ceiling and Window Section. Purchase orders and bing cards were taken into possession by the Railway Protection Force and after the investigation, complaint was presented in the Court. Criminal Appeal No.625-SBA of 2002 4
After the pre-charge evidence was led, on 28th July, 1997 the accused-respondents were charged by the Court of Chief Judicial Magistrate, Kapurthala. The charge stated that on 21st July, 1995 at about 5.30 a.m. in the area of Main Gate, Rail Coach Factory, Hussainpur accused Ram Lal was found in possession of seven aluminum plates, which was the property of Railways, reasonably suspected to have been stolen or unlawfully obtained and thereby he committed an offence punishable under Section 3 of the Act. The second charge stated that on the same day at about 11.30 a.m. accused Nazar Singh in his shop located at Old Grain Market, Kapurthala was found in possession of 132 aluminum window Pattis and one aluminum frame along with aluminum hooks weighing about 2 ½ kgs, which was also the property of Railways, reasonably suspected to have been stolen or unlawfully obtained and thereby he also committed an offence punishable under Section 3 of the Act.
Prosecution, in pre-charge evidence, examined ASI Munshi Ram PW-1, ASI Amarjit Singh PW-2, HC Raj Ali PW-3, Davinder Kumar Chargeman PW-4 and Narinder Kumar Chargeman PW-5.
After the above said charge was framed, accused had pleaded not guilty and claimed trial. The witnesses were cross-examined by the accused under Section 246 Cr.P.C. and statements of the accused under Section 313 Cr.P.C. were recorded. All incriminating circumstances were put to them but they denied the same and pleaded innocence.
Before the grounds of acquittal recorded by the trial Court are noticed, it will be necessary to give brief gist of the prosecution evidence.
Criminal Appeal No.625-SBA of 2002 5
ASI Munshi Ram PW-1 stated that on 21st July, 1995 he was posted in Police Post, Railway Protection Force, Rail Coach Factory, Hussainpur. He along with ASI Amarjit Singh and other staff members, accompanied accused Ram Lal and on his identification had reached at the shop of Nazar Singh situated in the Old Grain Market. Nazar Singh was present in his shop. Two of his neighbourers were called and in their presence, search of the shop of Nazar Singh was carried. 132 aluminum plates, one aluminum frame and aluminum hooks were recovered therefrom. He had also given the weight of aluminum goods recovered from the shop. In cross-examination, this witness stated that he has seen the property recovered. The same carried no insignia or mark of Railways. He admitted that aluminum is commonly available in the market. He further stated that no register of the Railways was checked to find out as to whether any goods were deficient or not.
ASI Amarjit Singh PW-2 stated that on 21st July, 1995 he was posted in the Railway Protection Force Post, Rail Coach Factory, Hussainpur. He was on patrol duty along with companion police officials. He had checked the vehicles. The jeep being driven by Ram Lal was checked and from its rear seat, seven plates of aluminum measuring 5 ½ feet long having a width of 16" and thickness of 2 mm were found. He further deposed regarding the recovery made from accused Ram Lal, its seizure and taking the same into possession and further on the disclosure made by accused Ram Lal, search carried in the shop of Nazar Singh and the recovery made therefrom, which has already been noticed from the testimony of ASI Munshi Ram PW-1. He further stated that Nazar Singh could not produce any evidence regarding purchase of the property. He had disclosed that somebody had sold the same to him. Criminal Appeal No.625-SBA of 2002 6 In cross-examination, this witness stated that the jeep was of Mohindra type but mark/model of the same is not known to him. He was unable to disclose the length of jeep. However he stated that the plates were stored in the back of the jeep. The jeep belongs to the Rail Coach Factory and its driver is an employee of the factory, but he had not seen the jeep on the day of his deposition. Cabin of the jeep was more than 5 feet long. He stated it to be incorrect that the cabin of the jeep was 4 feet. He also stated it to be incorrect that the aluminum plates were more than 6' long. He stated that he had taken into possession the Railway record regarding deficiency of the goods recovered.
HC Raj Ali PW-3 also corroborated the testimony of ASI Munshi Ram PW-1 regarding recovery made from Nazar Singh accused.
Davinder Kumar Chargeman PW-4 stated that on 11th September, 1995 he was called for verification of the goods recovered. He stated that the verification report Ex.PM is in his hand and the same is correct. He stated that the goods recovered are normally used by the Railways and they are the property of Railways. In cross-examination, this witness stated that on the goods recovered, there is no insignia or sign of Railways and these goods are commonly available in the market. The stock register is maintained by the Railways but he had not seen the same.
Narinder Kumar Chargeman PW-5 stated that seven aluminum plates were produced before him and he had submitted verification report Ex.PN. In cross-examination, this witness stated that these goods are not having any insignia or sign of Railways and that the goods recovered are commonly available in the market. He had not Criminal Appeal No.625-SBA of 2002 7 checked the stock register. He further admitted that all the goods purchased are entered in the Railway Stock Register.
In the impugned judgment, the trial Court held that examination of the independent witness is not necessary. However, it held that there has been no denial of the complainant that the Railway property is required to have its peculiar identification etc. and furthermore, the loss of Railway property is required to be brought on record by the complainant with the help of bills, vouchers, bing cards and purchase orders etc. The Court relied upon the admission made by the witnesses in cross-examination that the property recovered is normally available in the open market and there was no identification mark of Railway Department on any part of the stolen property. The trial Court held that this fact itself makes the prosecution case doubtful. The Court further held that it was stated by ASI Amarjit Singh PW-2 that the jeep bearing registration No. DID-6579 was the ownership of Rail Coach Factory but the witness had not proved on record any part of the log- book, which was taken into possession, or ownership of the jeep of Rail Coach Factory. The Court further held that storage of aluminum plates in the back of the jeep was improbable taking the size of its cabin and that of the recovered plates into consideration.
I have heard Mr.Puneet Jindal, Advocate appearing on behalf of the appellant and Mr. J.S. Maanipur, Advocate for the accused- respondents.
Recently, in 'Om Prakash v. State of U.P.' AIR 2008 SC 1112, Hon'ble the Apex Court has noticed Section 2(d) of the Act, which defines 'railway property' and Section 3 of the Act. Hon'ble the Apex Court has further relied upon 'State of Maharashtra v. Vishwanath Criminal Appeal No.625-SBA of 2002 8 Tukaram' 1979(4) SCC 23 to hold that to bring into play Section 3 of the Act, it is necessary for the prosecution to prove following three ingredients:
(i) The property in question should be railway property;
(ii) It should be reasonably suspected of having been stolen or unlawfully obtained; and
(iii) It should be found or proved that the accused was or had been in possession of that property.
In the present case, the trial Court has rightly held that the prosecution has failed to prove that the property recovered in question was the Railway property. Davinder Kumar PW-4 and Narinder Kumar PW-5, both employed as Chargemen, have stated that there is no peculiar mark or sign of identification that the goods allegedly stolen and recovered belong to the Railways. They further admitted that such goods are freely available in the market. Prosecution has also miserably failed to prove ownership of the vehicle or jeep, from which aluminum plates were recovered. No evidence has been led to prove employment of Ram Lal as a driver in the Rail Coach Factory. Neither his appointment letter nor posting orders nor even any communication has been produced on record to prove that he was a driver of the jeep. Furthermore, no official from the Railway Department has been examined to prove that on the fateful day, Ram Lal was deputed as a driver of the jeep. No document to this effect has been brought on record. As rightly held by the trial Court, even the prosecution has not proved any part of the log-book recovered from the jeep. Criminal Appeal No.625-SBA of 2002 9
Mr. Jindal, having failed to dislodge the findings given by the trial Court, has relied upon 'Balkishan A. Devidayal v. State of Maharashtra' AIR 1981 SC 379 to state that the confession recorded by an officer of the Railway Protection Force is admissible. This Court need not to examine this argument. As held in Om Prakash's case and Vishwanath Tukaram' case (supra), at the first instance it is incumbent upon the prosecution to prove that the property recovered was a Railway property. Unless the ingredients of Section 2(d) of the Act, which defines 'railway property', are proved, no confession under Section 3 of the Act can be relied upon. Even otherwise, this Court is conscious of the fact that in an appeal against acquittal, the High Court should not interfere with the view formulated by the trial Court, if the same is possible on the facts and under the circumstances of the case.
That being so, no interference is warranted in the present appeal and the same is dismissed being devoid of any merit.
[KANWALJIT SINGH AHLUWALIA] JUDGE January 17, 2012 rps