Delhi District Court
State vs . Shyam Sunder on 13 August, 2007
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Shyam Sunder
CC No. 13/01
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 35/03
b) Date of Institution : 26.06.2003
c) Name of the complainant : SI/RPF Rajesh Kumar
d) The name & add. of accused : 1) Shyam Sunder, S/o. Mahavir,
R/o. Village Pariyama,
PS Janakpur Road,
Dist. Sitamarhi, Bihar.
2) Pappu Chaurasiya,
S/o. Ram Kishan Chaurasiya,
R/o. Village Tikari, Dist. Gaya,
Bihar
(Already convicted vide order
dated 10.01.2002)
2) Ghansu, S/o. Shibva,
R/o. Village Kotra, PS Kundla,
Dist. Tikamgarh, M.P.
(Already convicted vide order
dated 10.01.2002)
e) Date of commission of
offence : 28.07.2001
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 02.08.2007
i) Final Order : Convicted accused no. 1
j) Date of Judgment : 13.08.2007
BRIEF STATEMENT OF REASONS FOR DECISIONS : Page No. 1
1. Briefly stated the facts of the case as alleged by the prosecution are that on 28.07.2001 at about 15.50 hours near Britania Gate within the jurisdiction of RPF Post SSB accused Shyam Sunder alongwith other coaccused persons was apprehended by RPF staff and found in possession of two bags of wheat as per seizure memo Ex. PW1/A worth of Rs. 1000/ 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.
2. After completion of enquiry complaint was put to the court for trial. The accused were summoned and copy of complaint was supplied to them.
3. Prosecution in all to prove its case cited as many as 10 witnesses and examined 4 witnesses.
4. During the course of trial accused no. 2 and 3 pleaded guilty for the crime in question, therefore, on 10.01.2002 charge U/s. 3 RP (UP) Act was framed out against both accused no. 2 and 3 separately to which they pleaded guilty. Accordingly vide order dated 10.01.2002 accused no. 2 and 3 were convicted. Thereafter case was proceeded against accused no. 1.
5. In precharge evidence prosecution examined PW1 Shri Anil Kumar, Station Superintendent testified that on 25.07.2001 he Page No. 2 was posted at Dhariwal Station and on that day FCI demanded for loading of 40 BCN. On 27.07.2001, 23424 bags of wheat were loaded in 40 BCN (covered boggy) for Khem Village, vide RR No. 5842 which was prepared by him and its copy is Ex. PW1/A.
6. PW2 SI Harbir Singh is the First Enquiry Officer who testified the apprehension of accused persons alongwith possession of case property and further enquiry conducted and documents prepared by him in this case.
7. PW3 HC Baljeet Singh is the witness of the spot. He was accompanied with the Enquiry Officers at the time of occurrence and during the enquiry and he testified the same in his deposition.
8. Thereafter precharge evidence was closed and from perusal of material produced on record and testimony of prosecution witnesses a prima facie case U/s. 3 RP (UP) Act was made out against the accused no. 1. Accordingly on 31.01.2006 charge for offence punishable U/s. 3 of RP (UP) Act 1966 was framed out against the accused no. 1 to which he pleaded not guilty and claimed trial.
9. Accordingly in aftercharge evidence PW1 to 3 came forward for their cross examination but accused no. 1 did not cross examine them despite opportunity granted.
10. Thereafter prosecution examined PW4 SI Rajesh Kumar, Page No. 3 who is second EO. He testified that on 11.08.2001 enquiry of this case was entrusted to him from ASI Harveer Singh. During the course of enquiry he prepared site plan Ex. PW2/D at the instance of ASI Harveer Singh, recorded statement of witnesses and got the case property verified vide memo Ex. PW4/A from Asstt. Manager, FCI Dhariwal. He collected the particulars of consignment and after completion of enquiry he submitted a complaint against all accused persons.
11. During the course of trial accused no. 1 pleaded guilty for the charge framed against him in this case and also moved application to this effect. Accusation was duly explained to accused no. 1 despite that he repeatedly pleaded guilty. Accordingly after charge evidence was dispensed with. On 02.08.2007 statement of accused no. 1 U/s. 281 was recorded in which he admitted all allegations put against him and prayed for lenient view.
12. I have heard Ld. APP for the RPF and accused in person and have gone through the material on record. APP for the RPF submitted that the prosecution has examined material witnesses and proved its case against the accused no. 1. Even otherwise other accused have also admitted their guilt and accordingly convicted by this Court, as such accused no. 1 may be convicted in accordance with law. On the other hand accused no. 1 has pleaded guilty for the Page No. 4 charge leveled against him and prayed for the lenient view. Accused no. 1 has also moved application to plead his guilt and his statement has also been recorded to this effect. Accused no. 1 was explained about the accusation despite that he repeatedly pleaded guilty. As such I am of the view that the accused no. 1 has pleaded guilty voluntarily and without any pressure or coercion and he can be convicted. To this effect I rely upon judgment passed in case titled as 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."
13. I also rely upon the observation taken in case titled as "Balk ishan A. Devidayal Vs. State of Maharashtra" and "State of Madhya Pradesh & Ors. Vs. Hari & Ors." 1980 CRL. L. J. 1424 Page No. 5 (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 1966 - Incriminating statements made by him during enquiry under S. 8 - Prosecution under S. 20 (3) not available" .
Page No. 6
14. In view of the aforesaid discussion and facts and circumstances accused no. 1 Shyam Sunder, S/o. Mahavir is hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 13.08.2007. MM:DELHI.
Page No. 7
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Shyam Sunder CC No. 13/01 PS : RPF/SSB U/s. 3 RP (UP) Act 1966 ORDER ON SENTENCE Present: APP for RPF.
Accused/Convict Shyam Sunder 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 has been facing trial for the last about 6 years. He further submitted that he is a poor person having 4 minor children to support and he is the only member of his family. He further submitted that he has already undergone some imprisonment in Judicial Custody in this case hence he may be released on undergone imprisonment.
Considering the nature of the offence and socio, economic condition of the accused/convict, accused/convict Shyam Sunder, S/o. Mahavir is sentenced to imprisonment which is already undergone by him and fine of Rs. 5,000/ I.D. 30 days S.I. + T.R.C. 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 13.08.2007. MM:DELHI.
Page No. 8
State Vs. Shyam Sunder
CC No. 13/01
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
13.08.2007
Present: APP for RPF.
Accused no. 1 on bail.
Accused no. 2 & 3 already convicted.
Vide separate Judgment and order of today accused no. 1 Shyam Sunder, S/o. Mahavir 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 13.08.2007 Page No. 9