Delhi District Court
State vs . Sanjay And Akash on 17 December, 2021
CNR No. DL CT 02-0213752021
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DL CT02-0213752021
CIS No. 2704/21
State Vs. Sanjay and Akash
CC No. 11/2021
PS. RPF/DSJ
U/s. Section 3 of The Railway Property (Unlawful
Possession) Act 1966
JUDGMENT
1) The date of commission of offence : 12.08.2021
2) The name of the complainant : ASI R.K Yadav
3) The name & parentage of accused : 1) Akash S/o Rampal
2) Sanjay S/o Kishan Lal
4) Offence complained of : Section 3 of The Railway Property (Unlawful Possession) Act 1966
5) The plea of accused : Pleaded not guilty
6) Final order : Convicted
7) The date of such order : 17.12.2021 Date of Institution : 12.10.2021 Judgment reserved on : 17.12.2021 Judgment announced on : 17.12.2021 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2021.12.17 16:22:27 +0530 State Vs Sanjay and Akash; CIS No.2704/21; CC NO. 11/21; PS. RPF/DSJ; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 1/8 CNR No. DL CT 02-0213752021 BRIEF REASONS FOR THE JUDGMENT:
1) The case of the railways is that on 12.08.2021 at about 19:35 hours near kilometer number 3/11 within the jurisdiction of RPF/DSJ accused persons were apprehended by RPF staff and they were found in possession of pendrol clips which were a railway property, suspected of having been stolen or obtained unlawfully.
2) After inquiry, complaint was filed by the inquiry officer.
Vide order dated 12.10.2021, this court dispensed with the recording of pre-summoning evidence as the complaint was made by the public servant in discharge of his official duties. Accused persons were produced before the court and pre-charge evidence was recorded. Pre-charge evidence was closed and the arguments on the point of charge were heard. Charge for the offence U/s 3 RP (UP) Act was framed upon accused persons to which they pleaded not guilty and claim trial. Accused persons refused to further cross-examine the witnesses of the railways who deposed during pre-charge evidence. After considering the submissions of the accused persons no further post charge evidence was lead and the matter was fixed for recording of statement of accused persons. Thereafter statements of accused persons were recorded in which accused persons denied all the allegations and opted not to lead defence evidence. Final arguments were advanced by Ld PP for RPF and Ld Defence Counsel.
3) The evidence lead during the stage of pre-charge evidence is to considered. Four witnesses were examined by the Railways and all were cross-examined by the Ld Defence Counsel. It is State Vs Sanjay and Akash; CIS No.2704/21; CC NO. 11/21; PS. RPF/DSJ; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 2/8 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2021.12.17 16:22:34 +0530 CNR No. DL CT 02-0213752021 necessary to go through the testimony of these four witnesses to appreciate as to whether the prosecution has been able to discharge its burden of proof or not.
4) PW1-JE Mayank Sood deposed that on 12.08.2021, during the inspection of track, 22 pendrol clip were found missing in between kilometers 3/6-8 and 3/7-9 for which a theft memo Ex.PW1/A was issued at about 21:00 hours. He deposed that on 03.09.2021 the case property of the present case was examined by him and the same was a railway property for which he issued a report Ex.PW1/B. In his testimony the seal card was given as Ex.P1 while the old seal card as Ex.P2. The pendrol clips were given P3 to P28 while the plastic bag as Ex.P29.
5) PW2 Ct Rajpal deposed that 12.08.2021 he was on patrolling duty along with ASI Yogender and Ct Jitneder Kumar and there they saw two persons carrying weighty bags in suspicions condition. On suspicions those persons were apprehended whose names were revealed as Sanjay and Akash. Accused were correctly identified. He deposed that the bags carried by the accused person were found containing 12 and 10 pendrol clips respectively for which accused persons failed to produce any authority and the accused persons were arrested at about 19:35 hours. He deposed that after completion of codal formalities the case was registered at RPF/DSJ post at about 20:30 hours vide DD no. Ex.PW2/C and the inquiry was marked to ASI Ram Yadav who recorded the disclosure statements Ex.PW2/D and Ex.PW2/E of the accused persons. He deposed that the accused persons pointed out the place of theft vide Ex.PW2/F and the entry was made in the crime register vide State Vs Sanjay and Akash; CIS No.2704/21; CC NO. 11/21; PS. RPF/DSJ; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 3/8 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2021.12.17
16:22:40
+0530
CNR No. DL CT 02-0213752021
Ex.PW2/G. He deposed that his statements Ex.PW2/H and Ex.PW2/I was recorded by EO.
6) PW3 ASI Ram Yadav deposed that inquiry of the present case was marked to him and during the inquiry accused persons made disclosure statement followed by confessional statements Ex.PW3/A and Ex.PW3/B respectively. He deposed that he got the case property verified and prepared site plan Ex.PW3/E. He deposed that he recorded the statement of witnesses and after completion of the inquiry prepared a complaint ExPW3/F. He correctly identified accused persons.
7) PW4 Ct Rajveer Singh deposed that on 12.08.2021 the case property of the present case was deposited in the malkhana vide DD Ex.PW2/C and the same was taken out for the verification and thereafter redopisted in the malkhana for which separate entry was made in the malkhana.
8) Before appreciating the testimony of prosecution witnesses the necessary ingredients of the offence U/s 3 RP UP Act as explained by Hon'ble Apex Court in judgment titled as State of Maharashtra vs Vishwanath Tukaram (1979) (4) SCC 23 are required to be mentioned. These ingredients are as follows:
a) The property in question should be a railway property;
b) It should be reasonably suspected of having been stolen or unlawfully obtained; and
c) It should be found or proved that accused was or had been in possession of that property.
9) The first poser is whether the property recovered from the possession of accused persons was a railway property or not. On this aspect the testimony of PW1 and PW2 are relevant. PW2 State Vs Sanjay and Akash; CIS No.2704/21; CC NO. 11/21; PS. RPF/DSJ; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 4/8 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2021.12.17
16:22:46
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CNR No. DL CT 02-0213752021
deposed that the accused persons were found in the possession of railway property which are pendrol clips used in railway tracks.
PW1 categorically deposed that on 03.09.2021 he examined the case property which is the pendrol clips used in railway tracks. The report is Ex.PW1/B. It was simply mentioned to PW1 that he did not examine the case property which was denied by PW1. I found no reason to disbelieve the testimony of PW1. There is nothing on record which could be the reason or motive for PW1 to falsely depose that the case property recovered was a railway property or to file a false report as to the verification of property. There is no contradiction at all in the testimony of RPF officials on the fact that the case property was recovered was railway property. In view of the testimony of railway officials, the report as to the verification of the property and the fact that property recovered is exclusively used in railways and is not available in open market proves on record that the property recovered pendrol clips used in railway track was railway property.
10) On the poser of the possession of the accused persons as to the railway property and the poser as to the theft or unlawfully having the possession of railway property, the testimony of PW2 and PW3 are relevant. PW2 deposed that the accused persons were found in the possession of pendrol clips used in railway tracks for which the accused persons failed to produce any authority for keeping or carrying the same. The testimony of PW3 is also specific as to the confessional statements Ex.PW3/A and Ex.PW3/B made by the accused persons respectively thereby voluntarily admitting their guilt regarding the theft of railway property. These pendrol clips used in railway tracks have been State Vs Sanjay and Akash; CIS No.2704/21; CC NO. 11/21; PS. RPF/DSJ; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 5/8 Digitally signed by KAPIL KAPIL KUMAR Date: KUMAR 2021.12.17 16:22:53 +0530 CNR No. DL CT 02-0213752021 proved to be the railway property in view of the above- discussion. The confessional statements made by the accused persons to the inquiry officer is also relevant and admissible on the strength of judgment of Hon'ble Apex Court titled as Balkishan A.Devi Dayal & Ors. Vs State of Maharashtra 1981 AIR(SC) 379 wherein it was held that character of inquiry under Railway Property (Unlawful Possession) Act is different from the investigation under the Code of Criminal Procedure and therefore any confession before an officer of Railway Police Force in the course of his inquiry is not to be excluded from evidence U/s 25 of Indian Evidence Act. It was held by Hon'ble Bombay High Court in the judgment titled as Saleem Mohd Babul Meniar Vs State of Maharashtra 2001 Criminal Law Journal 58 that the conviction can be based for the offence U/s 3 RP (UP) Act on the basis of the confessional statement of the accused persons. The confessional statements of the accused persons have been proved on record by the inquiry officer PW3. The confessional statements are categorical as to the possession of accused persons of the railway property.
11) In the cross-examination of PW2 and PW3 only bald suggestions were made by the Ld Defence Counsel that the case property was not recovered from the possession of accused persons. This suggestion in itself is not sufficient to discard the testimony of railway police official made on oath. There is nothing on record as to any circumstance which could be the reason for the railway police officers to falsely implicate the accused persons. By virtue of testimony of railway police officers and documents proved on record the possession of accused State Vs Sanjay and Akash; CIS No.2704/21; CC NO. 11/21; PS. RPF/DSJ; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 6/8 Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2021.12.17
16:22:59
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CNR No. DL CT 02-0213752021
persons of the pendrol clips used in railway tracks, which is a railway property, has been proved on record.
12) No explanation given by the accused persons as to their possession of railway property. In the judgment titled as The Public Prosecutor Vs Shariq Galib and others 1975 Criminal Law Journal 952 Hon'ble High Court of Andhra Pardesh observed that- once it is established that the property recovered is a railway property and is reasonably suspected to having been stolen, the burden shift upon the accused persons to show how they came into the lawful possession of the same. The Hon'ble Allahabad High Court in the judgment titled as Kallu Ram Vs State of UP 1975 Criminal Law Journal 160 observed where a person was found to be in possession of railway property, it was only that person who could explain how it came into the possession.
13) In the case in hand there is no explanation whatsoever by the accused persons as to their possession of railway property. The pendrol clips used in railway tracks are not something which could be used somewhere else or which could be procured easily from the market. They are of a special make to be used in railways only. The accused persons being found in the possession of pendrol clips used in railway tracks and have not furnished any explanation as to the possession clearly reveals that pendrol clips used in railway tracks were either obtained by theft or obtained unlawfully.
14) Accordingly, all the ingredients of offence U/s Section 3 of the Railway Property (unlawful Possession) Act 1966 Act stands satisfied. Accused persons Sanjay and Akash are hereby State Vs Sanjay and Akash; CIS No.2704/21; CC NO. 11/21; PS. RPF/DSJ; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 7/8 Digitally signed by KAPIL KAPIL KUMAR Date: KUMAR 2021.12.17 16:23:06 +0530 CNR No. DL CT 02-0213752021 convicted for the offence U/s Section 3 of the Railway Property (unlawful Possession) Act 1966 Act. Case property be released to the concerned department of railway/rightful owner after expiry of period of limitation for appeal. Copy of the judgment be supplied free of cost.
Be heard on point of sentence.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2021.12.17
16:23:11 +0530
Announced in the open court (KAPIL KUMAR)
on 17.12.2021 Metropolitan Magistrate-07
Central District, Tis Hazari Courts/Delhi State Vs Sanjay and Akash; CIS No.2704/21; CC NO. 11/21; PS. RPF/DSJ; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 8/8