Delhi District Court
State vs . Aasif on 25 March, 2022
CNR No. DL CT 020031742022
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DL CT020031742022
CIS No. 247/2022
State Vs. Aasif
CC No. 27/2021
PS. RPF/Delhi (M)
U/s. Section 3 of The Railway Property (Unlawful
Possession) Act 1966
JUDGMENT
1) The date of commission of offence : 16.12.2021
2) The name of the complainant : ASI Chaman Lal
3) The name & parentage of accused : Aasif S/o Kallan
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 : 25.03.2022 Date of Institution : 09.02.2022 Judgment reserved on : 25.03.2022 Judgment announced on : 25.03.2022 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.25 14:47:19 +0530 State Vs. Aasif; CIS No. 247/2022; CC no. 27/2021; PS. RPF/Delhi (M); U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 1/7 CNR No. DL CT 020031742022 BRIEF REASONS FOR THE JUDGMENT:
1) The case of the railways is that on 16.12.2021 at about 21:30 hours near Pole no.GL4 within the area of RPF/Delhi Main accused was apprehended by RPF Staff and he was found in the possession of 11 pendrol clips which was a railway property, suspected of having been stolen or obtained unlawfully.
2) After inquiry, complaint was filed by the inquiry officer.
Vide order dated 09.02.2022, 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 was 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 to which he pleaded not guilty and claim trial. Accused refused to further cross-examine the witnesses of the railways who deposed during pre-charge evidence. After considering the submissions of the accused no further post charge evidence was lead and the matter was fixed for recording of statement of accused. Thereafter statements of accused was recorded in which accused 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. Five witnesses were examined by the Railways and all were cross-examined by the Ld Defence Counsel. It is necessary to go through the testimony of these five witnesses to appreciate as to whether the prosecution has been able to discharge its burden of proof or not.
State Vs. Aasif; CIS No. 247/2022; CC no. 27/2021; PS. RPF/Delhi (M); U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 2/7 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.25 14:47:28 +0530 CNR No. DL CT 020031742022
4) PW1 SSE BL Mandal deposed that on 17.12.2021 during inspection 11 pendrol clips were found missing from Loco Shunting Line between GL6-GL/4 in DLI(Main), for which theft memo Ex.PW1/A was prepared. He deposed that on 03.01.2022 he examined the case property of the present case and issued a report Ex.PW1/B to the effect that the case property is a railway property which is used for fastening railway sleeper with railway lines. The case property was given Ex.P1 to Ex.P13 which includes seal cards Ex.P1 and Ex.P2.
5) PW2 SI Jai Nandan Singh deposed that on 16.12.2021 he was on patrolling vide DD no. Ex.PW2/A in the area of DLI(Main) where he was joined by Ct Avneet and SI Ajay and they proceeded towards Shahdra and there accused was apprehended on suspicion. He correctly identified the accused. He deposed that accused was found in the possession of 11 pendrol clips for which he failed to produce any authority and consequently arrested and case property seized at about 21:30 hours vide Ex.PW2/B. He deposed that case was registered at about 23:05 hours vide DD Ex.PW2/C and inquiry was marked to ASI Chaman Lal. The case property was given Ex.P1 to Ex.P13 which includes seal cards Ex.P1 and Ex.PW2.
6) PW 3 ASI Chaman Lal deposed that 17.12.2021 he made an inquiry of the present case and he was handed over the custody of the accused and the case property. He deposed that accused made a disclosure statement Ex.PW3/A and pointed out the place of theft vide pointing out memo Ex.PW3/B and made confessional statement Ex.PW3/C. He deposed that after the completion of inquiry the complaint Ex.PW3/F was filed in the court.
State Vs. Aasif; CIS No. 247/2022; CC no. 27/2021; PS. RPF/Delhi (M); U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 3/7 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.03.25 14:47:34 +0530 CNR No. DL CT 020031742022
7) PW4 Constable Rajiv deposed as to the registration of the present case in the crime register for which the relevant entry Ex.PW4/A was made.
8) PW5 HC Manoj deposed as to the deposit of the case property in the malkhana and subsequent proceedings as to the case property for its verification.
9) 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.
10) The first poser is whether the property recovered from the possession of accused was a railway property or not. On this aspect the testimony of PW1 and PW2 are relevant. PW2 deposed that the accused was found in the possession of 11 pendrol clips which was a railway property. PW1 categorically deposed that on 03.01.2022 he examined the case property of the present case and concluded that the same is the 11 pendrol clips which is a railway property. The examination 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 and PW2. There is nothing on record which could be the reason or motive for PW1 to falsely depose that the State Vs. Aasif; CIS No. 247/2022; CC no. 27/2021; PS. RPF/Delhi (M); U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 4/7 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.25 14:47:39 +0530 CNR No. DL CT 020031742022 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 ie. 11 pendrol clips were railway property.
11) On the poser of the possession of the accused 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 was found in the possession of 11 pendrol clips to which the accused fail to produce any authority for keeping or carrying the same. The testimony of PW3 is also specific as to the confessional statement Ex.PW3/C made by the accused thereby voluntarily admitting his guilt regarding the theft of railway property. The recovered 11 pendrol clips have been proved to be the railway property in view of the above-discussion. The confessional statement made by the accused 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 Protection Force in the course of his inquiry is not to be excluded from evidence U/s State Vs. Aasif; CIS No. 247/2022; CC no. 27/2021; PS. RPF/Delhi (M); U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 5/7 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.25 14:47:44 +0530 CNR No. DL CT 020031742022 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. The confessional statement of the accused has been proved on record by the inquiry officer PW3 The confessional statement is categorical as to the possession of accused of the railway property.
12) 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. 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. By virtue of testimony of railway police officers and documents proved on record, the possession of accused of the 11 pendrol clips which is a railway property, has been proved on record.
13) No explanation given by the accused as to his 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 to show how he 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 State Vs. Aasif; CIS No. 247/2022; CC no. 27/2021; PS. RPF/Delhi (M); U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 6/7 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.03.25 14:47:50 +0530 CNR No. DL CT 020031742022 railway property, it was only that person who could explain how it came into the possession.
14) In the case in hand there is no explanation whatsoever by the accused as to his possession of railway property. The 11 pendrol clips used in the railway coaches 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 being found in the possession of 11 pendrol clips and has not furnished any explanation as to the possession clearly reveals that the 11 pendrol clips were either obtained by theft or obtained unlawfully.
15) Accordingly, all the ingredients of offence U/s Section 3 of the Railway Property (unlawful Possession) Act 1966 Act stands satisfied. Accused is hereby convicted for the offence 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
Date:
KUMAR 2022.03.25
14:47:55
+0530
Announced in the open court (KAPIL KUMAR)
on 25.03.2022 Metropolitan Magistrate-07
Central District, Tis Hazari Courts/Delhi State Vs. Aasif; CIS No. 247/2022; CC no. 27/2021; PS. RPF/Delhi (M); U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 7/7