Delhi District Court
State vs . Mohd Irfan & Ors. on 7 December, 2007
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Mohd Irfan & Ors.
CC No. 32/05
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 220/05
b) Date of Institution : 31.10.2005
c) Name of the complainant : ASI/RPF Sumer Singh
d) The name & add. of accused : 1) Mohd. Irfan, S/o. Mohd Alam,
R/o. House No. 257, Madipur
Village, Delhi
(Already convicted vide order
dated 03.04.2006)
2) Paras Ram,
S/o. Ram Bahadur,
R/o. P1/1071, Sultanpuri, Delhi
3) Gagan Dev,
S/o. Pradip Mehto,
R/o. Tenant in G/115,
Mangolpuri, Delhi
e) Date of commission of
offence : 10.09.2005
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 03.12.2007
i) Final Order : Convicted
j) Date of Judgment : 07.12.2007
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the Page No. 1 prosecution are that on 10.09.2005 at about 15.50 hours at Junkshop, Madipur, Delhi within the jurisdiction of RPF Post SSB both accused Mohd Irfan was apprehended by RPF staff and found in possession of 8 pendul clips as per seizure memo Ex. PW3/A worth of Rs. 240/ belonging to Railway department reasonably suspected of having been stolen or unlawfully obtained and thereby accused committed an offence punishable U/s. 3 of RP (UP) Act 1966. On enquiry accused disclosed that he used to sell the stolen railway property at a junk shop at Madipur. Accordingly on the same day at about 18.50 hours raid was conducted at the instance of Mohd. Irfan at a junkshop at Madipur belonging to accused Paras Ram who alongwith accused Gagan Dev were loading some junk item in a Tata 407. On checking of said vehicle 10 pendul clips, 4 fish plates, 10 keys and 10 liners belonging to railway department were recovered which accused Paras Ram and Gagan Dev reasonably suspected of having obtained unlawfully and thereby both these accused persons also committed offence punishable U/s. 3 RP (UP) Act 1966.
2. Copies of complaint and other documents were supplied to the accused and case was fixed for precharge evidence vide order dated 25.11.2005. During precharge evidence, prosecution examined PW1 Shri Vipin Singh, JE/P. Way, PW2 Shri Raj Singh, Page No. 2 Keyman, SSB, PW3 HC Sunil Kumar, PW4 Shri Mukesh Kumar, SE/P. Way and precharge P.E. was closed. Thereafter, charge for offence U/s 3RP(UP) Act was framed against all accused persons on 03.04.2006 to which accused Mohd. Irfan pleaded guilty and also moved an application to that effect while other accused persons refused to plead guilty and claimed trial. Accordingly vide order dated 03.04.2006 accused Mohd. Irfan was convicted and sentenced and case was proceeded against other accused persons.
3. In after charge prosecution examined PW5 ASI Sumer Singh and P.E. was closed. Thereafter statement of accused persons Paras Ram and Gagan Dev U/s 313 Cr. P.C was recorded in which they denied all incriminating evidence led by the prosecution but when they were asked to say anything else, they pleaded guilty and also moved applications to that effect. Accused persons did not prefer to lead D.E.
4. I have heard Ld. APP for the State and accused persons in person and carefully gone through the material produced on record.
5. The allegations of prosecution are that accused was apprehended on 10.09.2005 15.50 hours HC Sunil Kumar, ASI Sumer Singh and Ct. Rajender Prashad during patrolling by a party of RPF officials accused Mohd. Irfan was apprehended at KM NO. 14/56 while carrying one plastic bag which was found containing Page No. 3 pendul clips. Accused failed to account for his possession over the pendul clips as such same was recovered and accused Mohs. Irfan was arrested. On enquiry accused Mohd. Irfan disclosed that he used to sell the stolen railway property in a junk shop at Madipur and accordingly at the instance of accused Mohd. Irfan raid was conducted at a junk shop at Madipur and accused Paras Ram and Gagan Dev were present there and were loading junk goods in a vehicle and on search of shop and vehicle 4 fish plates, 10 pendul clips, 10 keys, 10 liners were recovered. Accused Paras Ram and Gagan Dev could not produce any authorisation for keeping the same in their possession.
6. ASI Sumer Singh who allegedly apprehended the accused Mohd. Irfan alongwith the railway property appeared in witness box as PW5 and stated that on 10.09.2005 he alongwith Ct. Rajender Prasad and HC Sunil Kumar while patrolling duty apprehended accused Mohd. Irfan with unlawful possession of 8 pendul clips at about 15.50 hours near KM No. 14/5 between Nangloi and Sakur Basti. Case property was seized vide memo Ex. PW3/A and accused was personally searched vide memo Ex. PW3/B. Accused Mohd. Irfan made disclosure statement Ex. PW3/C and also pointed out place of theft vide memo Ex. PW3/D and also made confessional statement Ex. PW3/E. Site plan Ex. PW3/F was Page No. 4 prepared. Accused disclosed that he used to sell stolen railway property at a junk shop at Madipur. On the same day at the instance of accused Mohd. Irfan they searched junk shop at Madipur where some person were loading junk in a Tata 407. Accused Paras Ram, the junk dealer and Gagan Dev, driver were also present there. On search of shop and Tata 407, 10 pendul clips, 4 fish plates, 10 track keys and 10 liner and same was seized vide memo Ex. PW3/G. Accused Paras Ram and Gagan Dev were personally searched vide memo Ex. PW3/H and I and they also made confessional statement Ex. PW3/K and L respectively. Site plan of shop Ex. PW3/M was prepared. On the same day case was registered at RPF/SSB. During the course of enquiry he recorded statement of witnesses, received theft memo from concerned department and after completion of enquiry submitted a complaint in the court. He identified accused persons as well as case property in the court.
7. To prove that the case property i.e. pendul clips, fish plates, keys and liners are railway property, prosecution has examined PW1 Shri Vipin Singh, JE/P. Way who stated that on 08.10.2005 he opened three kattas and found them containing 8 pendul clips, 10 pendul clips respectively in two kattas and the other one was containing 4 fish plates, 10 keys and 10 liners which were railway property and he issued his certificate Ex. PW1/B in this regard. He Page No. 5 also identified the case property in the court. PW2 Shri Raj Singh, Keyman stated that on 09.09.2005 while patrolling in the track from K.M. No. 14 89, 18 pendul clips were found missing and he gave information to SSE Shri Mahesh Kumar in this regard. Shri Mahes Kumar, SE/P. Way also appeared in witness box as PW4 and testified that on 09.09.2005 18 pendul clips, 10 liseners were found missing from track line KM No. 14/89 between Sakur Basti and Nangloi. He visited the spot and issued theft memo Ex. PW4/A in this regard. The testimony of all these witnesses is remained unrebutted since accused did not cross examine any of these witnesses, therefore, these prosecution witnesses have proved that the case property is railway property.
8. PW3, PW5 who are the witnesses of the spot are not cross examined by the accused. PW6 one of the witnesses of the spot stated in his cross examination that diriver of the truck was present on the spot. He further stated that IO can tell about the ownership of truck. He denied the suggestion that the recovered case property was lying on the open place. They started proceedings at about 18.20 hours and completed by 20.00 hours approx. They tried to join public witnesses but none was agreed and no notice was given to public persons for refusing to join. Rest of the suggestions were denied. The testimony of PW6 has been corroborated by the Page No. 6 confessional statement Ex PW3/K and L. There are no such contradictions in the statement of PW6 so as to disbelieve his testimony.
9. The prosecution has proved that accused Paras Ram and Gagan Dev made confessional statement Ex. PW3/K and PW3/L respectively. It is to be noted that confessional statement were made by accused while they were in custody of RPF Officials who are not police officers. Reliance in this regard can be placed upon following citations :
a) In a case titled as "Sal im Mohamed Babul Miniyar Vs. State of Maharashtra" 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."
b) In another case titled as "Balk ishan A. Devidayal Vs. State Page No. 7 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 Chapter XIV of the Criminal Procedure Code qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (charge sheet) 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) "Pers on accused of an offence" Person arrested under S. 6 of Railway Property (Unlawful Possession) Act Page No. 8 1966 - Incriminating statements made by him during enquiry under S. 8 - Prosecution under S. 20 (3) not available" .
10. In their statement recorded U/s 313Cr.P.C, accused have taken plea that they have been falsely implicated in this case. Accused persons have not proved that prosecution witnesses were known to him prior to the date of incident and were having any enemical terms with him and on that account they have falsely implicated them in this case. Accused persons have not attributed any motive to the prosecution witnesses as to why they have falsely depose against him.
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 Paras Ram, S/o. Ram Bahadur and Gagan Dev, S/o. Pradip Mehto are hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 07.12.2007 MM:DELHI.
Page No. 9
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Mohd Irfan & Ors.
CC No. 32/05
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
ORDER ON SENTENCE
Present: APP for RPF.
Accused/Convict Paras Ram and Gagan Dev on bail.
Heard on the point of sentence. APP for the RPF submitted that the prosecution has examined witnesses and proved its case hence accused may be convicted in accordance with law. On the other accused/convict submitted that he belongs to a poor family. He further submitted that he has already undergone some imprisonment in Judicial Custody in this case as such he may be released on undergone imprisonment.
Considering the nature of the offence and socio, economic condition of the accused/convict, accused/convict Paras Ram, S/o. Ram Bahadur and Gagan Dev, S/o. Pradip Mehto are sentenced to imprisonment which is already undergone by them and fine of Rs. 5,000/ I.D. 30 days S.I. in this case U/s. 3 of RP (UP) Act 1966.
Case property be disposed of in accordance with law. File be consigned to Record Room.
Copy of order be given to the accused/convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 07.12.2007 MM:DELHI.
Page No. 10
State Vs. Mohd Irfan & Ors.
CC No. 32/05
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
07.12.2007
Present: APP for RPF.
Accused No. 1 already convicted.
Accused Nos. 2 & 3 on bail.
Vide separate Judgment and order of today accused Paras Ram, S/o. Ram Bahadur and Gagan Dev, S/o. Pradip Mehto are 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 07.12.2007 Page No. 11