Delhi District Court
State vs . Rajender & Anr. on 1 April, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Rajender & Anr.
CC No. 05/04
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 35/04
b) Date of Institution : 22.03.2004
c) Name of the complainant : SI/RPF Harvir Singh
d) The name & add. of accused : 1) Rajender, Mange Lal,
S/o. Mange Lal,
R/o. JG3/153, Vikas Puri,
Delhi.
2) Kishan Lal,
S/o. Padama Ram,
R/o. F3/41920, Sultanpuri,
Delhi.
(Already convicted vide order
dated 30.11.2004)
e) Date of commission of
offence : 08.02.2004
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 01.04.2008
i) Final Order : Convicted
j) Date of Judgment : 01.04.2008
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 08.02.2004 at about 15.00 hours at km nO. 14/34, DN Line between Mangolpuri and Nangloi Stations within the jurisdiction of RPF Post SSB both accused persons were apprehended Page No. 1 by RPF staff i.e. ASI Harbir Singh, HC Resham Pal Singh, Ct. Mukesh Kumar and they were found in possession of 29 pendrul clips as per seizure memo Ex. PW2/A worth of Rs. 1240/ 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 prepared and filed in the court for trial. Accused persons no. 1 was summoned and accused no. 2 was produced from judicial custody and copy of complaint and other documents were supplied to them.
3. In precharge evidence prosecution examined PW1 Shri S.P. Saini, PW1 Gohana and PW2 ASI Harvir Singh and precharge PE was closed. A prima facie case was made out to frame charge against accused. Accordingly vide order dated 30.11.2004 charge for offence punishable U/s. 3 RP (UP) Act was framed out against both accused persons and when contents of the same were read over to accused persons, accused no. 1 Rajender pleaded not guilty and claimed trial whereas accused no. 2 Kishan Lal pleaded guilty and moved an application to this effect. Accordingly vide order dated 30.11.2004 accused no. 2 was convicted and sentenced for offence punishable U/s. 3 RP (UP) Act. Thereafter case was proceeded against accused no. 1.
4. In aftercharge PE prosecution examined PW1, PW2, PW Page No. 2 3 Ct. Mukesh Kumar, PW4 Raja Ram and PW5 HC Resham Pal Singh and PE was closed. On 28.03.2008 statement of accused no. 1 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 was not arrested at the railway line nor pendrul clips were found in his possession. He was taken from his house by a railway police man on his motorcycle in the morning or 8.2.2004 on the plea of identification of some accused at railway police post. He was put in jail, police officials took his signature on some papers. He is an illiterate and innocent person and has been falsely implicated in this case.
5. I have heard learned APP for the State and accused in person and have gone through the material placed on record.
6. I have heard Ld. APP for the State and accused in person and have gone through the material placed on record.
7. 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.
Page No. 3
If a person is found in possession of a property obtained through any of the means of Section 410 IPC, the property would be considered stolen and possession thereof unlawful, within the meaning of Section of 3 RP (UP) Act. "Unlawfully" means contrary to law. Illegal possession covered for Section 410 IPC and whatever other means covered by the term "unlawfully" is there. Possession not covered by Section 410 IPC also will be unlawful if it is obtained violating some other law. Hon'b le High Court of Allahabad had to consider this term in case titled as "Chet Ram Vs. State of UP" 1976 Cri LJ 585 "The accused along with his companions removed a bag from a wagon. When RPF personnel on duty chased him, he threw the bag on the track and tried to run away. During trial, the accused took the plea that he was not arrested in possession of the bag but it was recovered from the track by the RPF." The leaned judge turned down this defence, convicted the accused and laid down that accused had removed the bag with the intention of exercising sole dominion over it, that the accused had the corporeal possession of the bag even if, he had thrown it and that the accused was seen in possession and it could be proved against him.
In Halsbury's Laws of England, IVth Edn., Vol. 35 in possession"' para 1214 at p. 735 the word "' is used in various contexts and phrases, for example in the phrase "actual possession"
or "to take possession" or "interest in possession" or "estate in Page No. 4 possession" or "entitled in possession". In para 1211 at p. 732, with regard to legal possession it has been stated that possession may mean that possession which is recognised and protected as such by law. Legal possession is ordinarily associated with de facto possession; and de facto possession is not always regarded as possession in law. A person who, although having de facto possession, is deemed to have possession in law is sometimes said to have constructive possession. IN para 216 at p. 736 it is stated that the right to have legal and de facto possession is a normal but not necessary incident of ownership. Such a right may exist with, or apart from, de facto or legal possession, and different persons at the same time in virtue of different proprietary rights.
Possession is the objective realisation of ownership. It is the de facto exercise of a claim to certain property and a de facto counterpart of ownership. Possession of a right is the de facto relation of continuing exercise and enjoyment as opposed to the de jure relation of ownership. Possession is the de facto exercise of a claim to certain property. It is external form in which claims normally manifest themselves. Possession is in fact what ownership is in right enforceable at law to or over the thing. A man's property is that which is his own to do what he likes with it. Those things are a man's property which are the object of ownership on his part. The word "possession" implies a physical capacity to deal with the thing as we Page No. 5 like to the exclusion of every one and determination to exercise that physical power on one's own behalf in full consciousness. Supdt. And Remembrancer of Legal Affairs V. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 Cri Lj 1390. "Possession is a polymorphous terms which may have different meanings in different contents. It is impossible to work out a completely logical and precise definition uniformly applicable to all situations." Salmond (12th Edn. p. 52). "The test for determining whether a person is in possession of any thing is whether he is in general control of it."
Possession must be conscious one. No man can be said to possess the thing without his knowledge. To make the possession culpable the accused must have a mens rea. There is no possession when there is no knowledge. Onus of proving of knowledge is upon the prosecution.
8. In the instant case in order to prove the case property as railway property, prosecution examined PW1 Shri S.P. Saini and PW 4 Shri Raja Ram, Keyman. PW1 testified issuance of theft memo Ex. PW1/A in respect of 29 pendrul clips stolen from KM No 87 between SSB to Nagloi Stations. He further testified examination conducted by him on 24.02.2004 at RPF Post SSB of case property i.e. 29 pendrul clips and report Ex. PW1/A issued by him in this regard in which he opined that case property is a railway property. Though PW1 was cross examination in aftercharge PE yet nothing material Page No. 6 came out. PW4 also corroborated the testimony of PW 1 while testifying theft of 29 pendrul clips from KM No. 14/87 between Nangloi and Sakur Basti on 08.02.2004 during his depositions. Thus the the testimony of PW1 and PW4 is found trustworthy, believable and corroborative. Accordingly case property is proved to be railway property.
To prove other ingredients of Sec. 3 RP (UP) Act prosecution examined PW2 ASI Harvir Singh, PW3 Ct. Mukesh Kumar and PW5 HC Resham Pal Singh. PW2 ASI Harvir Singh who is the most material witness being Enquiry Officer testified that on 08.02.2004 he alongwith HC Reshampal and Ct. Mukesh Kumar during patrolling duty at about 15.00 hours apprehended the accused persons alongwith one plastic bag near 14/34, SSB area . Both disclosed their names as Kishan Lal and Rajender. 15 pendrul clips were recovered from the possession of Rajender while 14 pendrul clips were recovered from Kishan Lal. Accused persons could not account for their possession over pendrul clips as such pendrul clips were recovered vide memo Ex. PW2/A and their personal search was conducted vide memos Ex. PW2/B and C respectively. Accused persons made disclosure statement which are Ex. PW2/D and E. Accused persons also pointed out place of theft vide memo Ex. PW 2/F and confessed their guilt voluntarily vide their statements Ex. PW 2/G and H. Site plan Ex. PW2/I was prepared. He received theft Page No. 7 memo and got the case property verified from expert. After completion of enquiry he prepared complaint and filed in the court for trial. PW2 testified case property and also identified accused in the court. PW2 was cross examined in aftercharge PE but nothing contradictory came out in his cross examination. Even otherwise PW 3 and PW5 have corroborated the testimony of PW2. Therefore, the testimony of all PWs is found believable, trustworthy and corroborative.
9. On the other hand accused in his statement recorded U/s. 313 Cr. P.C. simply denied all incriminating evidence led by the prosecution and taken a plea that he is innocent. 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 failed to show any motive to implicate him in this case, as such this plea taken by the accused 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 Page No. 8 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."
10. In case titled as "Balkishan Vs. State of Maharashtra"
Crl. L.J. 1980 page 1424 the Apex Court 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. I also rely upon the observations held in case titled as "Salim 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." Accused Rajender has not given any suggestion to PW2 or any other witness in the cross examination that disclosure statement Page No. 9 Ex PW2/D and confessional statement Ex. PW2/G were not made by him or that the same do not bear his thumb impression or that he was made compelled to put his thumb impression on the same under threat or duress.
11. I also rely upon the judgment given in case titled as "Balkishan 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 (chargesheet) 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) "Person 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. 10
12. Prosecution witnesses have proved the date, time and place of occurrence and also proved the identity of accused and that of case property. I do not find any inherent defect or material contradiction among the testimony of prosecution witnesses.
13. 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 Rajender, Mange Lal, S/o. Mange Lal is hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 02.04.2008 MM:DELHI. Page No. 11 IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Rajender & Anr. CC No. 05/04 PS : RPF/SSB U/s. 3 RP (UP) Act 1966 ORDER ON SENTENCE Present: APP for RPF. Convict Rajender on bail. Heard on the point of sentence. APP for the RPF
submitted that the prosecution has examined witnesses and proved its case hence convict is liable to be sentenced in accordance with law. On the other 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 convict, convict Rajender, Mange Lal, S/o. Mange Lal is sentenced to period which is already undergone by him and fine of Rs. 5000/ I.D. 30 days in this case U/s. 3 of RP (UP) Act 1966.
Copy of order be given to the convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 02.04.2008 MM:DELHI.
Page No. 12
State Vs. Rajender & Anr.
CC No. 05/04
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
02.04.2008
Present: APP for RPF.
Accused Rajender on bail.
Accused Kishan Lal is already convicted.
Vide separate Judgment and order of today accused Rajender, Mange Lal, S/o. Mange Lal 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 02.04.2008 Page No. 13