Delhi District Court
Kunwal Pal vs State on 16 April, 2012
CA NO:32/2012 CC No. 12/03 PS RPF/TKD DATED: 16.04.2012
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0137122012
CA NO:32/2012
KUNWAL PAL Vs STATE
CC No. 12/03
PS RPF/TKD
U/s 3 of Railway Property
(Unlawful Possession)Act, 1966
IN THE MATTER OF
KUNWAR PAL
S/o SHRI ISHWARI PRASAD
R/o VILLAGE TEHKHAND, OKHLA
PHASE-1, NEW DELHI ....Appellant / Convict
Vs.
STATE ....Respondent
APPEAL AGAINST JUDGMENT OF CONVICTION AND ORDER ON SENTENCE DATED 29.02.2012 AND 05.03.2012 DATE OF INSTITUTION : 26.03.2012 DATE OF FINAL HEARING : 16.04.2012 DATE OF FINAL ORDER : 16.04.2012 ORDER ON APPEAL
1. This appeal is preferred by convict against the judgment of conviction and order on sentence dated 29.2.2012 and 5.3.2012 whereby he alongwith co convict Manoj @ Mota (acquitted in a separate Appeal) were sentenced to undergo RI for two years apart form fine of Rs.2000/- U/s 3 RP(UP) Act I/D 15 days SI.
2. I have heard arguments of Ld. Counsels for convict Sh. D.P. Singh and Sh.P.K.Garg advocate and Ld. Addl. PP Sh. V.K. Negi for State . I have also carefully perused the entire Appeal file as well as TCR.
3. Brief facts necessary for disposal of this appeal are that on 01.04.04 at about 10:20 PM while RPF Officials were on patrolling duty near Yard on the way leading to Village-Tehkhand, co-convict Manoj was seen coming carrying a plastic sack on his right shoulder. Upon checking it was found containing Order on Appeal Kunwar Pal Vs. State Page 1/7 CA NO:32/2012 CC No. 12/03 PS RPF/TKD DATED: 16.04.2012 Railway brake block. Manoj was detained for commission of offence U/s 3 RP (UP) Act. His disclosure statement was recorded and he pointed out the place of theft of the brake block. Site plan was prepared. Manoj also disclosed about selling similar brake blocks to a scrapper Appellant Kunwar Pal. Recovery of similar brake blocks worth Rs. 1,900/- was effected from there. Appellant Kunwar Pal was also arrested. It was followed by filing of complaint Ex. PW 2/C . During the trial RPF examined four witnesses at the pre charge stage. It was followed by framing of charge and examination of PW-5. Upon conclusion of evidence statement of accused was recorded. No evidence was led in defence. After hearing both the sides, Ld. MM passed impugned orders of conviction & sentence.
4. While opening his arguments first plea taken by convict is that no recovery was effected from co- convict Manoj @ Mota or on his pointing out and claimed brake blocks were planted upon him. In support of this plea it is pointed out that the theft memo Ex. PW 4/A which is said to have been made by PW-4 Dilip Kumar Singh is primarily a undated document. This witness is claimed to have seen the brake blocks seized from the convict vide memo Ex. PW 2/B . In his examination in chief he stated that he was shown the brake blocks by IO on 18.04.04 but in his cross examination he changed the dated to 19.04.04. It is interesting to observe here that as per Seizure Memo Ex. PW 1/G soon after the recovery, the brake blocks were seized and sealed with the seal of MS. Even if PW-5 is to be believed that it is evident that seal of the property was broken. Deposition of PW-1 shows that case property was produced in the court in the sealed condition. This makes it clear that sanctity of the seal was breached during the time case property was in the custody of RPF officials. This single fact is sufficient in its own wisdom to trash the entire prosecution case.
5. It is surprising to observe that according to PW-3 , PW-1 ASI N. Sahay retained Order on Appeal Kunwar Pal Vs. State Page 2/7 CA NO:32/2012 CC No. 12/03 PS RPF/TKD DATED: 16.04.2012 the seal of MS after use. Further more, it is also pointed out that neither any public person was joined in the investigation nor any attempt was made to join any public person.
6. In case titled Staila Sayyed Vs. State, 2008 (4) JCC 2840 Division Bench of Hon'ble Delhi High Court ruled that " non joining of public witness at the time of recovery and arrest of the accused does not inspire confidence." It was observed " the plea that police could not be relied upon is indeed based on the position of law laid down by the Hon'ble Supreme Court ............... The Appex Court is of the view that such recoveries "do not inspire confidence" and had ordered for acquittal in the case of Sanspal Singh Vs. State of Delhi (1998 ) 2 SCC
371." In the above judgment, Hon'ble Supreme Court observed " it is thus evident that public witnesses were available and could have been associated to witness the recovery . It would have been a different matter altogether had there been no public witness available or none was willing to associate . Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we go to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged, we, therefore, order his acquittal. He is in jail. He be set at liberty forthwith."
7. PW-3 further stated that the sack in which the brake blocks were seized was obtained later on from the yard. This averment further damaged the prosecution case irreparably in so far as according to PW-1 brake blocks was being carried by the co-convict in a sack.
8. As far as recoveries allegedly effected from convict Kunwar Pal vide Memo Ex. PW 1/F i.e. one Brake Block and one Nuckle it is observed that even though HC R . Narayan is sited as a witness, the memo is not signed by him. The stock shortage statement Ex. PW 4/A purportedly issued by Order on Appeal Kunwar Pal Vs. State Page 3/7 CA NO:32/2012 CC No. 12/03 PS RPF/TKD DATED: 16.04.2012 some Railway Official is also conspicuously undated.
9. Even though Section 10 of RP (UP) Act makes it mandatory that a search warrant shall be got issued by concerned Magistrate before any RPF official is desirous of searching a premises, neither any such application was moved nor any search warrant ever obtained. Even provisions of Section 11 RP (UP) Act which mandates compliance of Section 100 Cr. P.C. during search has not been complied with in so far as there is nothing on record to show if any attempt was made to rope in any respectable person from the locality. Statutes are reproduced hereunder for ready reference.
10. Section 10 of The Railway Property (Unlawful Possession) Act, 1966- Issue of Search Warrant - (1) If an officer of the Force has reason to believe that any place is used for the deposit or sale of railway property which has been stolen or unlawfully obtained, he shall make an application to the Magistrate, having jurisdiction over the area in which that place is situate, for issue of a search warrant.
(2)The Magistrate to whom an application is made under sub-section (1), may, after such inquiry as he thinks necessary, by his warrant authorise any officer of the Force -
(a)to enter with such assistance as may be required, such place;
(b)to search the same in the manner specified in the warrant;
(c)to take possession of any railway property therein found which he reasonably suspects to be stolen or unlawfully obtained ; and
(d)to convey such railway property before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety.
Order on Appeal Kunwar Pal Vs. State Page 4/7 CA NO:32/2012 CC No. 12/03 PS RPF/TKD DATED: 16.04.2012
11. Section 11 of The Railway Property (Unlawful Possession) Act, 1966 Searches and arrests how to be made - All searches and arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating respectively to searches and arrests made under that Code.
12.Section 100 Cr. PC runs as under :
Section 100 Cr. PC:- Persons in charge of closed place to allow search (1)Whenever any place liable to search or inspection under this chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
(2)If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner providing by sub-section (2) of Section 47.
(3)Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.
(4)Before making a section under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend any witness the search and may issue an order in writing to them or any of them so to do.
(5)The search shall be made in their presence,and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless Order on Appeal Kunwar Pal Vs. State Page 5/7 CA NO:32/2012 CC No. 12/03 PS RPF/TKD DATED: 16.04.2012 specially summoned by it.
(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
(7)When any person is searched under sub-section (3),a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code.
13.In case titled Ram Kishore Vs. State, 1990 RLR 154 (DB) , Division Bench of Hon'ble Delhi High Court while discussing Section 100 Cr.P.C. observed:
"It is obligatory on the part of the Police Officer to call on and get two or more respectable inhabitants of the locality to be the witnesses of the search. These witnesses must be called before the search is started. In this case , this precaution has not been taken ... even though the places were such where respectable persons of the locality were available. ......... this makes the recovery and its identification doubtful."
14. There is absolutely no complaints of above mandatory statutory provisions. In view of the above discussion, I have no hesitation in concluding that prosecution has failed to bring home the guilt of accused beyond the shadow of doubt.
15.In case titled Sohan and Another Vs. State of Haryana and Another, (2001) 3 SCC 620 it has been observed by Hon'ble Order on Appeal Kunwar Pal Vs. State Page 6/7 CA NO:32/2012 CC No. 12/03 PS RPF/TKD DATED: 16.04.2012 Supreme Court that :
''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words , the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided.''
16.Benefit of doubt is given to the appellant / convict and appellant / convict stands acquitted of the offences charged U/s 3 RP (UP) Act.
17.In case titled Partap Vs. State, AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that :
''The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.''
18. Appeal is accordingly allowed, appellant / convict be released from J/c forthwith if not required in any other case subject to furnishing personal bond of Rs. 10,000/- with one surety of like amount which shall be deemed canceled after the expiry of period of six months U/s 437A Cr.P.C. File be consigned to RR. TCR be sent back with copy of this order. ANNOUNCED AND DICTATED IN OPEN COURT ON : 16.04.2012 (SURINDER S. RATHI) Addl. Sessions Judge-02 Central : Delhi Order on Appeal Kunwar Pal Vs. State Page 7/7