Delhi District Court
State vs . Om Chander Prakash on 29 August, 2007
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Om Chander Prakash
CC No. 19/96
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 653/03
b) Date of Institution : 19.08.2003
c) Name of the complainant : IPF Radhey Shyam Maurya
d) The name & add. of accused : 1) Om Chander Praksh,
S/o. Rewa Ram,
R/o. Plot No. 72, Anand Nagar,
Nangloi, Delhi
(Already convicted vide order
dated 04.08.2004)
2) Ashok Kumar,
S/o. Sausa Singh,
R/o. Village Kheri, Post Behral,
Kasba Ekadpur, Distt. Agra, U.P.
Present Address
Anand Nagar, Nagloi,
Behind Classic Showroom, Delhi
e) Date of commission of
offence : 05.10.1996
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 29.08.2007
i) Final Order : Convicted
j) Date of Judgment : 29.08.2007
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 05.10.1996 at about 10.30 hours near trolly Page No. 1 hut, SSB Yard within the jurisdiction of RPF Post SSB accused were apprehended by RPF staff and they were found in possession of 4 bundles of copper as per seizure memo Ex. PW2/A worth of Rs. 23,800/ 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 9 witnesses. Before proceeding to any conclusion let we analyse the testimony of the prosecution witnesses.
4. In precharge evidence prosecution examined PW1 Shri J.L. Meena who testified that on 23.11.1994 Roll No. E4892 and E4895 were received which were weighing about 3021 kg as per challan and these bundles were of contact copper wire, out of which one bundle No. E4842 weighing 1506 kg was given on charge to Shri Rajender Prasad in sealed condition on 12.08.1996. He gave statement to RPF which is Ex. PW1/A.
5. PW2 Shri Pritam Singh, Retd. SI testified that on 05.10.1996 he was posted as ASI at Shakurbasti. On that day HC Page No. 2 Rameshwar Dayal, Ct. Suresh Singh alongwith produced accused Om Chander Prakash, Ashok Kumar and Mukesh Kumar with copper wire of 170 kg in a rickshaw and told that accused were apprehended at about 10.10 hours at Railway Yard / SSB while taking railway copper wire in a rickshaw. He enquired from the accused and they disclosed their name as Om Chand Prakash, Ashok Kumar and Mukesh Kumar. Accused Mukesh Kumar was the rickshaw puller. Accused were taking the railway property after stealing the same from Railway Yard SSB. Case property was seized vide memo Ex. PW2/A. All three accused persons were personally searched vide memo Ex. PW2/B and C. One iron cutter, hammer, plas and chenni were also recovered from the rickshaw of accused. Accused pointed out the place from where they jumped the wall and entered inside and also pointed out towards the big drum from which they steal the wires after cutting the same out of which one piece was taken as sample. The disclosure statement is Ex. PW2/D and E and pointing out memo is Ex. PW2/F. Accused confessed their guilt voluntarily vide memos Ex. PW2/G and H. Theft memo was received which is Ex. PW2.I. On the same day he registered case against accused at Post and copy of rojnamcha is Ex. PW2/J. He prepared site plan Ex. PW2/K. He prepared joint report Ex. PW2/L. During enquiry case property was got examined by IPF R.S. Mohre as further Page No. 3 enquiry was entrusted to him. PW2 identified the accused as well as case property in the court.
6. PW3 Insp. K.L. Vaid testified the disclosure statement of accused persons and point out memo. He testified that on 05.10.1996 accused persons made disclosure statement Ex. PW2/D that they committed theft of copper wire after entering the Ward No. SSB Store of HSection. He further testified that accused also pointed out place of theft vide memo Ex. PW2/F. PW3 identified the specimen of wires in the court.
7. PW4 Shri Rajender Prasad Yadav testified that on 05.10.1996 accused persons pointed out place of theft in his presence vide memo Ex. PW2/F. He further testified that on 05.10.196 a joint checking was conducted by RPF ASI, ACOs Mohar Singh, GP Singh ACos total 6 persons vide report Ex. PW2/C. He further testified that on 29.10.1996 he examined the case property and issued his report Ex. PW4/A in which he opined that case property is a railway property. PW4 identified the accused persons and case property in the court.
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. Accordingly on 04.08.2004 charge for offence Page No. 4 punishable U/s. 3 of RP (UP) Act 1966 was framed out against both accused persons to which accused no. 1 pleaded guilty while accused no. 2 pleaded not guilty and claimed trial. Accordingly vide order dated 04.08.2004 accused no. 1 was convicted and thereafter case was proceeded against accused no. 2.
9. In aftercharge evidence PW1 to PW4 were cross examined by the Counsel of accused no. 2. In his cross examination PW1 stated that on 12.08.1996 he handed over bundle of copper contact wire no. E 4892 to Rajender Prasad which was weighing 1506 kg. He was transferred in the month of August 1996 to Dispath section.
PW2 in his cross examination stated that HC Rameshwar Prasad and Ct. Sumer Singh brought the accused persons at about 10.15 pm on 05.10.1996. Spot was situated at 200 paces from RPF office. Statement of Mahesh Rickshaw puller was recoded. He denied the suggestion that Mukesh was neither enquired nor any statement was recorded. Disclosure statement was recorded by him at store at about 11.15 pm. Case property was weighed at store. There were total 4 bundles weighing different weights. Rest of the suggestions were denied.
PW3 in his cross examination testified that accused Mukesh, Ashok and Om were produced before him but could not tell Page No. 5 the time of production of accused. Disclosure was recorded by ASI at his direction but he signed the disclosure. Rest of the suggestions were denied.
PW4 in his cross examination testified that accused pointed out the place of theft between 9.30 to 9.45. Office was situated at about 150 meter from the spot. Site plan was prepared by ASI of RPF. The lock was opened in the presence of all persons. He was the custodian of Hut No. 6 ' H'. He received the charge on 12.08.1996 from G.L. Meena. He admitted that the contact wire bundle no. 4892 was recovered in sealed condition which was weighing about 893 kg. He refused to know the weight of wires and drum. Rest of the suggestions were denied.
10. Thereafter prosecution examined PW5 Shri Mohar Singh, Deputy Chief Material is one of the joint inspection. He testified that on 05.10.1996 RPF staff alongwith accused Om Chander Prakash and two other persons visited the General Store of SSB Railway Office. Mr. P.C. Trivedi and GP Singh were also present there. Accused Om Chander Prakash pointed out the place of theft. A sample was taken from the cable drums and those were again sealed. Joint inspection report Ex. PW2/L was prepared in his presence. He identified accused Om Chander Prakash in the court.
In his cross examination PW5 stated that it was about Page No. 6 10.30 or 11.00 AM. Pointing out memo was made by Om Chander Prakash and other persons accompanied remain outside.
11. PW6 HC Sumer Singh who was posted as Constable and accompanied with the Enquiry Officer at the time of occurrence and during enquiry. He testified the facts of the case and enquiry conducted by EO in his presence.
PW6 in his cross examination testified that accused were carrying cable in gunny bags. They produced at about 10.10 hours. Spot was situated at a distance of 200 m from the RPF Post. They reached at General Store at about 11.00 hours alongwith ASI Pritam Singh, HC Rameshwar Dayal alongwith accused persons. It took about 2 hours for completing the formality. Accused entered the general store by damaging the doors. One iron blade, plush, hammer and one cheni were also recovered. Site plan was prepared in his and HC Rameshwar Dayal presence at the spot. C Confessional statement was recorded at spot after visiting the store. Bundle were weight by kanta by EO before registering the case. Rest of the suggestions were denied.
12. PW7 Shri Raj Kumar, SE testified that on 05.10.1996 he was called by RPF and he inspected the door of H Section of General Store. Lock was properly locked and sealed but planks of lower side of doors were in damage condition and one could enter in Page No. 7 the store from the damaged door. He issued certificate Ex. PW7/A. In his cross examination PW7 tesified that he was called by ASI RPF at about 11.00 or 11.30 hours. He reached there after 5 minutes. Many officers were present there when he reached. Rest of the suggestions were denied.
13. PW8 IPF R.S. Maurya is the second Enquiry Officer. He testified that on the directions of ASC this case was handed over to him for further enquiry on 08.10.1996. During enquiry he got the case property verified vide report Ex. PW4/A, recorded the statement of accused and received documents of this case from ASI Pritam Singh. After completion of enquiry he prepared complaint Ex. PW8/A and filed the same in the court.
In his cross examination PW8 stated that he received the information telephonically regarding further enquiry of this case. Only cycle rickshaw was produced before him. Rickshaw puller was not present. He did not give any notice regarding statement. The said rickshaw was also made case property in this case. He denied the suggestion that he is deposing falsely.
14. PW9 Shri P.C. Dewedi, Retd. DCos testified that on 05.10.1996 he was posted as ASC, SSB and on that day RPF officials brought three persons and told that they had committed theft of railway property. Shri GP Singh and of A/C branch were also Page No. 8 present there. Accused persons disclosed in their presence that how they committed the theft. His statement recorded in this regard is Ex. PW9/A. In his cross examination PW9 stated that RPF officials brought the accused at about 12.00 Noon. He refused to tell that whether the supervisor opened the lock before 12.00 or not. He further refused to know whether the doors were made of iron or wood. He refused to tell how many RPF officials came there. No site plan was prepared in his presence by RPF official. He denied the suggestion that no proceeding was conducted in his presence and that he was deposing falsely.
15. APP for State given up HC (Retd.) Rameshwar from the list of witnesses. Thereafter PE was closed and on 08.08.2007 statement of accused no. 2 U/s. 313 Cr. P.C. was recorded in which accused denied each and every incriminating evidence led by the prosecution and stated that he is innocent and falsely implicated in this case, however, accused no. 2 refused to led DE.
16. I have heard the submissions of APP for State and Counsel for the accused no. 2 and carefully gone through the material produced on record. In order to prove its case, prosecution cited as many as 11 witnesses in the list of witnesses and examined 9 witnesses. One witness i.e. PW Rameshwar Dayal was given up Page No. 9 by the APP whereas another witness i.e. Cauthu Ram, who is stated to be the witness of pointing out of place of theft, never turned up to depose against the accused.
17. In this case U/s. 3 RP (UP) the following ingredients of offence has to be proved by the prosecution beyond a reasonable doubt :
(i) The property in question should be railway property;
(ii) It should be reasonably suspected of having been stolen or unlawfully obtained; and
(iii) It should be found or proved that the accused was or had been in possession of that property.
18. PW4 Shri Rajender Prashad Yadav is examined as an expert witness who testified his report Ex. PW4/A which he prepared after examining the case property and in which he opined that the case property i.e. 4 bundles of wires are OHE copper wire and same are belonging to railway and same are not available in open market. Though PW4 was cross examined by the Counsel for accused no. 2 but nothing material or contradiction came out of it hence the testimony of PW4 remain trustworthy and believable. Hence, this witness proved the first ingredient of Section 3 of RP (UP) Act. PW2 SI (Retd.) Shri Preetam Singh, first Enquiry Officer is one of the important witness and he testified apprehension of accused persons Page No. 10 alongwith case property and proved the documents prepared during enquiry such as personal search memo Ex. PW2/B and C, disclosure statement of accused Ex. PW2/D and E, pointing out memo Ex. PW2/F, confessional statement of accused Ex. PW2/G and H, theft memo Ex. PW2/I, site plan Ex. PW2/K and joint inspection report dated 05.10.1996 Ex. PW2/L. Though PW2 was also cross examined by the Counsel for accused no. 2 but nothing material came out of it hence testimony of PW2 also remain trustworthy. Other PWs have also corroborated the testimony of PW2. In my view the testimony of PWs are trustworthy, believable and corroborative. The Counsel for accused cross examined all PWs but nothing material or contrary came out from the testimony of all prosecution witnesses. In these circumstances prosecution has successfully proved the apprehension of accused persons and recovery of case property from their possession.
19. In a case decided under Section 3 (2) of the Official Secrets Act, 1923, the accused was found in conscious possession of a map. No explanation was offered by him for possession of the same. It was held that it must be presumed that the said map was obtained or collected by the appellant for a purpose prejudicial to the safety of interests of the State as observed in case titled as " State Alana Abdulla V. State of Gujarat" , (1996) 1 SCC 427: 1966 SCC Page No. 11 (Cri) 113.
20. In the instant case prosecution has examined all material witnesses to prove the allegations against the accused beyond a reasonable doubt. Out of the 11 witnesses as cited in list of witnesses 9 witnesses were examined as detailed above while one witness was given up by the prosecution and another witness Ct. Chauthu Ram did not turn up to depose against accused, but, in my opinion nonexamination of these will not hamper the case of the prosecution since there are overwhelming evidence against accused persons. To this effect I rely upon the observations held in Apex Courts judgment titled as "Amb ika Parsad V/s. State" 200(1) AD SC 141 wherein it was observed that :
" nonexamination of the IO or the police witness will not hamper the case of the prosecution unless there are other overwhelming evidence placed on record."
21. Accused no. 2 Ashok in his statement recorded U/s. 313 Cr. P.C. has taken a plea that he is innocent and case of the prosecution is false. By simply denying the prosecution case the burden to prove his contention shifted upon the accused, but, accused failed to prove by oral submission or by producing any documents that why he has been falsely implicated in this case or Page No. 12 failed to show any motive to implicate him in this case. As such this plea taken by the accused no. 2 is vague and baseless which seems to be afterthought. To this effect I reply upon Section 103 & 106 of Indian Evidence Act which provides as under : " 103 Burden of proof as to particular fact:- The burden of prof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the prof of that fact shall lie on any particular person.
Illustration
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."
" 106. Burden of proving fact especially within knowledge :- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
22. In my opinion prosecution has proved all the three ingredients of Section 3 RP (UP) Act as discussed above. As per Page No. 13 the judgment of Apex Court in case titled as " Balkishan Vs. State of Maharashtra" Crl. L.J. 1980 page 1424 it has been held that any incriminating statement of the accused does not get struck by either Section 25, 26 of the Evidence Act or Article 21 of Constitution of India. Hence, the confessional statement of the accused cannot be excluded from the prosecution evidence. It gives a corroborative strength to the entire prosecution evidence. The prosecution further relies on 1975 C.L.J. 952 which says (head note reproduced) : " (A) Railway Property (Unlawful Possession) Act (1966) Section 3 Seizure of suspected stolen railway property - No report of theft by Railway - Burden of proof. {Evidence Act (1872), Sections 101104}.
It is not necessary that there should be a report of the theft of the railway property. It is sufficient if the facts and circumstances disclose that the property is reasonably suspected of having been stolen.
Once it is established that it is the railway property and it is reasonably suspected to have been stolen, the burden shifts upon the accused to show how he came into lawful possession of the same.
The fact that no report of theft was made from the railway yard is not a ground for Page No. 14 holding that the accused came into possession of the property by lawful means."
23. I also rely upon the judgment given 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 (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 offence 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 'pol ice 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 Page No. 15 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" .
24. 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 no. 2 Ashok Kumar, S/o. Sausa Singh is hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 29.08.2007 MM:DELHI.
Page No. 16
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Om Chander Prakash
CC No. 19/96
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
ORDER ON SENTENCE
Present: APP for RPF.
Accused/Convict Ashok 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 Ashok Kumar, S/o. Sausa Singh is sentenced to imprisonment which is already undergone by him and fine of Rs. 5,000/ I.R. 3 months R.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 29.08.2007 MM:DELHI.
Page No. 17
State Vs. Om Chander Prakash
CC No. 19/96
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
29.08.2007
Present: APP for RPF.
Accused no. 1 already convicted.
Accused no. 2 on bail.
Vide separate Judgment and order of today accused Ashok Kumar, S/o. Sausa Singh 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 29.08.2007 Page No. 18