Delhi District Court
State vs . Bodhraj on 22 April, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Bodhraj
CC No. 01/08
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 53/08
b) Date of Institution : 19.02.2008
c) Name of the complainant : ASI/RPF Gajender Singh Yadav
d) The name & add. of accused : Bodhraj, S/o. Khayli Ram,
R/o. House No. 459,
Gali No. 33, Omkar Nagar C,
Trinagar, PS Keshav Puram,
Delhi.
e) Date of commission of
offence : 02.02.2008
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded guilty
h) Date on which judgment
reserved : 22.04.2008
i) Final Order : Convicted
j) Date of Judgment : 22.04.2008
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 02.02.2008 at about 16.15 hours at OHE Pole No. 9122 within the jurisdiction of RPF Post SSB accused Bodhraj was apprehended by RPF staff namely SI Kanshi Ram and ASI Manna Ram Meena and he was found in possession of 8 pendrol clips worth of Rs. 320/ belonging to Railway department reasonably suspected of having been stolen or unlawfully obtained and thereby accused Page No. 1 committed an offence punishable U/s. 3 of RP (UP) Act 1966.
2. After completion of enquiry complaint was put to the court for trial. Accused was produced from judicial custody and copy of complaint and other documents were supplied to him.
3. Prosecution in all to prove its case cited as many as 5 witnesses in the list of witnesses and examined 3 witnesses namely PW1 Shri Rajbir Singh and PW2 SI Kanshi Ram in precharge PE. Thereafter precharge PE was closed and a prima facie case was made out to frame charge against accused. Accordingly vide order dated 05.03.2008 charge for offence punishable U/s. 3 RP (UP) Act was framed against accused and when the contents of same were read over to him, he pleaded not guilty and claimed trial.
4. In aftercharge evidence prosecution examined PW1, PW3 ASI Gajender Singh and PW4 ASI Manna Ram Meena and PE was closed.
5. I have heard learned APP for the State and accused in person and have gone through the material placed on record. In this case U/s. 3 RP (UP) the following ingredients of offence have to be proved by the prosecution beyond a reasonable doubt :
(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 Page No. 2 in possession of that property.
If a person is found in possession of a property obtained through any of the means of Section 410 IPC, the property would be considered stolen and possession thereof unlawful, within the meaning of Section of 3 RP (UP) Act. "Unlawfully" means contrary to law. Illegal possession covered for Section 410 IPC and whatever other means covered by the term "unlawfully" is there. Possession not covered by Section 410 IPC also will be unlawful if it is obtained violating some other law. Hon'b le High Court of Allahabad had to consider this term in case titled as "Chet Ram Vs. State of UP" 1976 Cri LJ 585 "The accused along with his companions removed a bag from a wagon. When RPF personnel on duty chased him, he threw the bag on the track and tried to run away. During trial, the accused took the plea that he was not arrested in possession of the bag but it was recovered from the track by the RPF." The leaned judge turned down this defence, convicted the accused and laid down that accused had removed the bag with the intention of exercising sole dominion over it, that the accused had the corporeal possession of the bag even if, he had thrown it and that the accused was seen in possession and it could be proved against him.
In Halsbury's Laws of England, IVth Edn., Vol. 35 in possession"' para 1214 at p. 735 the word "' is used in various contexts and phrases, for example in the phrase "actual possession" Page No. 3
or "to take possession" or "interest in possession" or "estate in possession" or "entitled in possession". In para 1211 at p. 732, with regard to legal possession it has been stated that possession may mean that possession which is recognised and protected as such by law. Legal possession is ordinarily associated with de facto possession; and de facto possession is not always regarded as possession in law. A person who, although having de facto possession, is deemed to have possession in law is sometimes said to have constructive possession. IN para 216 at p. 736 it is stated that the right to have legal and de facto possession is a normal but not necessary incident of ownership. Such a right may exist with, or apart from, de facto or legal possession, and different persons at the same time in virtue of different proprietary rights.
Possession is the objective realisation of ownership. It is the de facto exercise of a claim to certain property and a de facto counterpart of ownership. Possession of a right is the de facto relation of continuing exercise and enjoyment as opposed to the de jure relation of ownership. Possession is the de facto exercise of a claim to certain property. It is external form in which claims normally manifest themselves. Possession is in fact what ownership is in right enforceable at law to or over the thing. A man's property is that which is his own to do what he likes with it. Those things are a man's property which are the object of ownership on his part. The word Page No. 4 "possession" implies a physical capacity to deal with the thing as we like to the exclusion of every one and determination to exercise that physical power on one's own behalf in full consciousness. Supdt. And Remembrancer of Legal Affairs V. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 Cri Lj 1390. "Possession is a polymorphous terms which may have different meanings in different contents. It is impossible to work out a completely logical and precise definition uniformly applicable to all situations." Salmond (12th Edn. p. 52). "The test for determining whether a person is in possession of any thing is whether he is in general control of it."
Possession must be conscious one. No man can be said to possess the thing without his knowledge. To make the possession culpable the accused must have a mens rea. There is no possession when there is no knowledge. Onus of proving of knowledge is upon the prosecution.
6. In the instant case in order to prove the case property as railway property, prosecution examined PW1 Shri Rajbir Singh, SE, PWay, SSB testified that on 03.02.2008, 8 pendrol clips were found short in between KM No. 9/1921 in respect of which theft memo Ex. PW1/A was issued by him. He further testified that on 12.02.2008 he examined the case property i.e. 8 pendrol clips and issued report Ex. PW1/B in which he opined that the case property belong to railway department. There is no rebuttal to the testimony of PW1 as Page No. 5 such PW1 proved that the case property is a railway property.
7. To prove other ingredients of Section 3 RP (UP) Act prosecution examined PW2 SI Kanshi Ram, PW3 ASI Gajender Singh and PW4 ASI Mannu Ram Meena who all are witnesses of the spot and they testified apprehension of accused on 02.02.2008 near OHE Pole No. 9/22 while carrying 8 pendrol clips unlawuflly. They also proved the documents prepared during investigation in accordance with law. They identified the accused as well as case property in the court. The whole testimony of PW2 to PW4 remained unrebutted on the material points since accused did not prefer to put any question during his cross examination. Even otherwise the testimony of PWs is found corroborated on the material points.
8. On the other hand accused during his statement recorded U/s. 313 Cr. P.C. did not plead any grudge or illwill against PWs. Rather he admitted all incriminating evidence led by the prosecution against him.
9. In case titled as "Balkishan Vs. State of Maharashtra"
Crl. L.J. 1980 page 1424 the Apex Court held that any incriminating statement of the accused does not get struck by either Section 25, 26 of the Evidence Act or Article 21 of Constitution of India. Hence, the confessional statement of the accused cannot be excluded from the prosecution evidence. I also rely upon the observations held in case titled as "Salim Mohamed Babul Miniyar Vs. State of Maharashtra" Page No. 6
2001 CRL. L. J. 58, (BOMBAY HIGH COURT) DR. (Mrs.) Pratibha Upasani, J. Cr. Revn. Appl. No. 243 of 1994 wherein it was held that : "Railway Property (Unlawful Possession) Act (29 of 1966), Ss. 3(a), 8(1) - Unlawful possession of railway property - Accused voluntarily confessed that he had purchased stolen property of railway - Confessional statement recorded by RPF officer making enquiry under S. 8(1) - Is admissible in evidence as he is not a police officer under S. 162 CR. P.C. Conviction based on said confessional statement - Not illegal." Accused has not given any suggestion to PW2 or any other witness in the cross examination that disclosure statement Ex PW2/C and confessional statement Ex. PW2/E were not made by him or that the same do not bear his thumb impression or that he was compelled to put his thumb impression on the same under threat or duress.
10. I also rely upon the judgment given in case titled as "Balkishan A. Devidayal Vs. State of Maharashtra" and "State of Madhya Pradesh & Ors. Vs. Hari & Ors." 1980 CRL. L. J. 1424 (SUPREME COURT) wherein it was observed that :
"U/s. 25 - Police Officer - Officer of R.P.F. making inquiry in respect of offence under S. 3 of Railway Property (Unlawful Possession) Act (1966), is not Police Officer The primary test for determining whether an officer is a Police Officer is : Whether the officer concerned under the Special Act, has been invested with all the powers exercisable by an officerincharge of a Police Station under Page No. 7 Chapter XIV of the Criminal Procedure Code qua investigation of offence under that Act, including the power to initiate prosecution by submitting a report (chargesheet) under Section 173 of the Cr. P.C. of 1898. In order to bring him within the purview of the ' police officer' for the purpose of Section 25, Evidence Act, it is not enough to show that the exercises some or even many of the powers of a police officer conducting an investigation under the Code. Constitution of India, Art. 20 (3) "Person accused of an offence" Person arrested under S. 6 of Railway Property (Unlawful Possession) Act 1966 - Incriminating statements made by him during enquiry under S. 8 -
Prosecution under S. 20 (3) not available".
11. In view of the aforesaid discussion and facts and circumstances of the case I come to the conclusion that prosecution has proved its case against accused. Accordingly accused Bodhraj, S/o. Khayli Ram is hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 22.04.2008. MM:DELHI.
Page No. 8
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Bodhraj CC No. 01/08 PS : RPF/SSB U/s. 3 RP (UP) Act 1966 ORDER ON SENTENCE Present: APP for RPF.
Convict produced from J/C. Heard on the point of sentence. APP for the RPF submitted that the prosecution has examined witnesses and proved its case hence convict is liable to be sentenced in accordance with law. On the other convict submitted that he belongs to a poor family. He further submitted that he has already undergone imprisonment of about 2 months and 19 days in judicial custody during the course of trial hence he may be released on undergone imprisonment.
Considering the nature of the offence and socio, economic condition of the convict, convict Bodhraj, S/o. Khayli Ram is sentenced to period which is already undergone by him and fine of Rs. 1,000/ I.D. 3 days S.I. in this case U/s. 3 of RP (UP) Act 1966. Benefit U/s. 428 Cr. P.C. is also awarded to the accused.
Case property be disposed of in accordance with law. File be consigned to Record Room.
Copy of order be given to the convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 22.04.2008. MM:DELHI. Page No. 9 State Vs. Bodhraj CC No. 01/08 PS : RPF/SSB U/s. 3 RP (UP) Act 1966 22.04.2008 Present: APP for RPF. Accused produced from J/C.
PW ASI Rajbir Singh, SE, ASI Gajender Singh and ASI Mannu Ram Meena PW1 ASI Rajbir Singh, SE, PW3 ASI Gajender Singh and PW3 ASI Mannu Ram Meena are examined and discharged accordingly.
No other PW is present. PE is closed. Let statement of accused be recorded.
Statement of accused U/s. 313 Cr. P.C. is recorded today separately.
Vide separate Judgment and order of today accused Bodhraj, S/o. Khayli Ram is convicted and sentenced for the offence punishable U/s 3 of RP (UP) Act 1966.
Case property be disposed of in accordance with law. File be consigned to R.R. (S.K. Gautam) MM/Delhi 22.04.2008 Page No. 10