Delhi District Court
State vs . Jai Lal Aabuddin on 17 January, 2013
IN THE COURT OF SH. LOVLEEN,
METROPOLITAN MAGISTRATE 03 (CENTRAL), DELHI
STATE VS. Jai Lal Aabuddin
CC No. 377/III/03 [Crime Case No. 27/01]
Unique Case ID No. 02401R0578072003
P.S. RPF/NDLS
Date of Institution: 27.08.2001
Date of reserving judgment: 17.01.2013
Date of pronouncement: 17.01.2013
JUDGMENT U/S 355 Cr.P.C.
a)Date of offence : 05.07.2001
b)Offence complained of : U/s 3RP(UP)Act.
c)Name of accused, his parentage : Jai Lal Aabuddin
& residence S/o Sh. Humdul
R/o Village Jigri, PS Farakka, Distt.
Murshidabad, West Bengal.
d)Plea of accused : Pleaded not guilty
e)Final Order : Acquitted
C.C. No. 27/01 1of 15
JUDGMENT:
1. This is a complaint case filed by the officials of Railway Protection Force (RPF) under section 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as 'the Act'), wherein it is alleged that the accused Jai Lal Aabuddin was found in possession of railway property (one booked consignment) which was reasonably suspected of having been stolen or unlawfully obtained. The value of abovesaid case property in this case is Rs. 1417/ (approximately).
2. Briefly stated, the case of the prosecution is, that on 05.07.2001 at about 15.00 hrs while the RPF officials including SI V.M. Tripathi and HC Ramphal were on patrolling duty at NDLS Station and they reached at PF no. 4/5 Delhi side, they saw Ct. Narender Kumar Singh who was raising alarm "PakroPakro" and chasing one person who was carrying one heavy gunny bag on his head, was running up the stairs. Upon suspicion, he was apprehended. The identity of the accused was disclosed as Jai Lal Aabuddin. The material being carried by him was checked. Accused was found in possession of one booked consignment. The accused failed to produce any authority for keeping and carrying the railway property with him and disclosed that he had committed theft of the same. Accordingly, the accused was arrested in this case and the property was seized. Present crime case was registered and inquiry was conducted. After completion of the inquiry, complaint was filed in the court.
3. Since the present complaint was filed by the public servant in writing, recording of presummoning evidence was dispensed with. Precharge evidence was lead wherein the complainant examined PW1 SI V.M. Tripathi, PW2 Pratap Singh, PW3 ASI Ram Phal and PW4 Sunil Kumar Sirohi.
4. On the basis of precharge evidence so lead, charge for the offence under section C.C. No. 27/01 2of 15 3 of the Act was framed against the accused vide order dated 28.07.2008, to which he pleaded not guilty and claimed trial.
5. At the trial, in terms of Section 246 CrPC, the witnesses already examined in precharge evidence i. e. PW2, PW3 and PW4 were recalled for crossexamination in postcharge evidence. Additionally, the prosecution examined PW5 Anant Lal Namdev and PW6 Ram Avtar in post charge stage.
6. PW1 and PW3 were a part of the RPF team who had apprehended the accused. Both these witnesses deposed about the apprehension of the accused while in the possession of the railway property that was seized and accused was arrested and personally searched vide memo Ex. PW1/A. Disclosure statement and pointing out memo Ex. PW1/C and PW1/D respectively were prepared. Sample chit Ex. PW1/B was prepared. Confessional statement of accused Ex. PW1/E was prepared. Site plan Ex. PW1/F was prepared. Case was registered vide DD no. 135 dated 05.07.2001 which is Ex. PW1/G. Certified copy of forwarding note is Ex. PW1/I. Loading summary is PW1/J. Unloading summary is Ex. PW1/K. Verification certificate is Ex. PW1/L. Theft memo is Ex. PW1/M. After completion of inquiry, the complaint Ex. PW1/N was filed in the court. The case property is Ex.P1.
7. PW2 Partap Singh was the loading and unloading clerk at NDLS station. He unloaded thirty booked consignment bearing RR no. 1325 from rear SLR of train no. 309, Ambala passenger out of which 10 packages were in good condition. He prepared unloading summary and proved verified copy of the same Ex. PW1/K in the court. He also brought the original record in this regard.
8. PW4 Sunil Kumar Sirohi who deposed to have issued the theft memo Ex.PW1/M after having discovered the theft of of a package bearing railway marka C.C. No. 27/01 3of 15 13125 P10. The witness further deposed that the accused was brought before him after sometime by PW1 and who (accused) disclosed the place from where he committed the theft of the case property.
9. PW 5 is Anant Lal who deposed that on 02.07.2001, he received a forwarding note and to have weighed 10 packages and to have prepared RR no.13125 thereafter for transport via railways.
10. PW 6 is Ram Avtar who deposed to have put railways marka on the articles booked at Railway Station Maihar, District Satna, Madhya Pradesh.
11. Statement of the accused under section 313 CrPC was recorded on 01.05.2012, wherein he denied all the allegations and pleaded innocence. He claimed that he has been falsely implicated in this case and he did not commit any theft. He further stated that no railway property was found in his possession. However, he chose not to lead any evidence in defence.
12. It is in these circumstances that the Ld. PP for RPF has argued that the prosecution/complainant has been able to prove its case beyond reasonable doubt against the accused. He has primarily submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.
13. Ld. Counsel for accused has submitted that the entire prosecution case is false. It is argued that the entire case is based only on the testimony of police officials who are interested witnesses and despite availability of the public persons, none of them were joined in the proceedings at any stage.
14. I have heard the arguments advanced by the Ld. PP for RPF as well as the Ld. Defence Counsel and have meticulously perused the material available on record.
15. The present case has been filed under Section 3 of the Act which reads as C.C. No. 27/01 4of 15 follows:
"Whoever is found or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable
(a) for the first offence with imprisonment for a term which may extend to five years or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees..."
16. The Hon'ble Supreme Court has laid down the law in precedents titled as State of Maharashtra v. Vishwanath Tukaram Umale [AIR 1979 SC 1825] and also in Om Prakash v. State of UP [AIR 2008 SC 1112], that the following ingredients need to be established by the prosecution in such cases to establish the guilt of the accused:
(i) the property in question should be railway property,.
(ii) it should reasonably be 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.
17. Before evaluating the evidence adduced on record by the complainant, it would be appropriate to discuss the background of the authority/powers granted to the complainant/RPF to prosecute the present complaint. The Railway Protection Force was constituted by the Parliament of India vide Railway Protection Force Act 1957, the C.C. No. 27/01 5of 15 Preamble of which "Act" mentions the reason for constitution of RPF as an armed force of the Union so as "to provide better protection and security to railway property, passenger area and passengers and for matters connected therewith". In order to deal with the enormity of problems of theft and pilferages on railways, Railway Property (Unlawful Possession) Act 1966 was enacted which conferred powers upon members of the RPF to arrest any person found in unlawful possession of railway property and to further conduct an inquiry under the said Act. After the conduct of the inquiry, stipulated under Section 8 of the Railway Property (Unlawful Possession) Act 1966, complaints like the one in hand are filed before the concerned Illaqa Magistrates. Here, it would be appropriate to discuss certain mandatory provisions/rules regarding the records to be maintained by the RPF in respect of theft of any railway property. In order to regulate the inquiry anticipated u/s 8 of Railway Property (Unlawful Possession) Act 1966, certain rules have been codified under Chapter XIV titled "Investigation and Prosecution" of Railway Protection Force Rules 1987, prescribing, under Rule 222, that all the crimes affecting Railway Property have to be entered either in the localized crime register or the unlocalized crime register. (Localized Crimes are those where the actual place of offence is prima facie apparent from the inspection of the scene and Unlocalized crimes are those where actual place of crime cannot be immediately known or ascertained). The relevant part of said rule is reproduced below for ready reference :
222.5.... For the "Localized Crime Register", two summaries shall be prepared one shall be cause wise and the other commoditywise. The causewise summary shall have its sub heading as : C.C. No. 27/01 6of 15
(a) Running Train Thefts :
(b) Yard Thefts :
(c) Goods Shed, Parcel godowns and Platform Thefts ;
(d) Pilferages :
(e) Thefts of fittings from Rolling stock ;
(f) Thefts of Railway Material including coal (except theft of fitting from rolling stock)
(g) Miscellaneous Each summary may have further subclassifications as may be prescribed through the Directives.
Similarly, under Rule 223 of RPF Rules, it has been provided that all seizures or recoveries of railway property shall be entered in malkhana register and an entry to that effect has to be made in the concerned crime register. It has been further provided under rule 223.2 of the RPF Rules that where the seized property cannot be linked to the railway property for which theft or shortage memo has been issued, the same shall be entered in Railway Property (Unlawful Possession) Act register. These rules categorically imply that the RPF is under an obligation to make the necessary entries in its records/registers regarding any intimation about the theft of any Railway Property. In the present case, neither at the time of alleged apprehension of the accused along with case property nor at the time of receipt of theft memo (which theft memo was received by the RPF on the date of alleged apprehension of accused) the RPF bothered to make the necessary entries in the prescribed registers as discussed above. This court C.C. No. 27/01 7of 15 cannot lose sight of the fact that security agencies like the RPF have been granted wide powers for the apprehension and arrest of offenders. In order to channelize and restrict the misuse of the said powers, certain rules regarding the conduct and procedure of the security agencies have also been prescribed. In the present case the RPF has blatantly violated the mandate of rules 222 and 223 of RPF Rules 1987 by not making the necessary entries, thereby bringing its motives under a cloud of doubt. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that :
"if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. "
It has been submitted by the Ld. PP that necessary entries regarding apprehension and arrest of accused were made in the "Roznamcha Register". Even the said handwritten copy of Roznamcha Register has not been proved according to law as neither the original Roznamcha Register was produced before this court during the trial nor any application was moved for leading secondary evidence in this regard. The deliberate noncompliance of prescribed rules coupled with the reluctance of the RPF to produce the original roznamcha register during trial casts a duty upon this court to scrutinize the evidence adduced on record by the complainant with extra caution and circumspection.
C.C. No. 27/01 8of 15
18. This court shall now deal with the evidence available on record pertaining to the question of the identification of the case property as railway property. The prosecution is under an obligation to prove beyond reasonable doubt that the case property allegedly recovered from the accused is a railway property. For any property to be a railway property, it should have been proved to be in possession of or in the charge of the railway administration (section 2(d) of the Act). As far as the consignments are concerned, the same come into the possession of the railway as soon as the same are accepted for consignment. Until the same is delivered at the destination to the consignee after completion of all formalities, the same remains in custody of the railways. In case of any loss in the transit, the responsibility is that of the railways. Further, the railway marka which is put by the railway officials on every such package booked through railway bearing the specific RR No. (railway receipt number), shows that the property was a railway property. In the present case, the prosecution failed to examine the person who allegedly booked the case property with the railways for transport. The prosecution has merely exhibited the forwarding note and the parcel way ticket as Ex.PW1/H and PW1/I respectively in the statement of PW1. Even the said documents are also verified copies of the originals. The prosecution has failed to explain as to what prevented them from producing the originals. It is not the case of the prosecution that the said documents are per se admissible. The prosecution did not take the permission of this Court to lead any secondary evidence in this regard. In these circumstances, this Court of the considered opinion that the said documents remain not proved as per law and could not be relied upon by this Court consequently. Once this Court prefers to disbelieve the above said documents, the necessary corollary is that the prosecution fails miserably to prove that the case property allegedly C.C. No. 27/01 9of 15 recovered from the possession of the accused was a railway property as defined under Section 2(d) of the Act. On this short ground alone, the accused is liable to be acquitted as the prosecution is under an obligation to prove that the property allegedly recovered from the accused is a railway property in order to secure conviction of the accused under Section 3 of the Act.
19. The case of the prosecution has many other weaknesses apart from the above mentioned technical shortcomings. The prosecution projects the DD Ex.PW1/G as the entry made in the roznamcha register after the arrival of the RPF staff consequent to the alleged apprehension of the accused. However, the prosecution has not placed the relevant departure entries of the RPF staff vide which they left the RPF post for patrolling the area and later on allegedly apprehended the accused red handed. There is no justification forthcoming on behalf of RPF, to exclude the departure entries. Equally, important is the fact that the RPF failed to associate any public person at any stage of enquiry before the filing of present complaint. It is not disputed that the place of alleged arrest of the accused is a place frequented by public persons or railway officials. Either the passengers or the vendors, or the coolies are always present in the railway premises. This court can take note of the fact that running of railways is a herculean 24 hours task. It could not be imagined that the presence of even an independent railway official could not be ensured by the RPF. This further makes the recovery doubtful in view of the observations made by the Hon'ble Supreme Court in Ritesh Chakarvarti Vs State of Madhya Pradesh, (SC)2007 (1) SSC (Crl.) 744, wherein it has been observed that:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at C.C. No. 27/01 10of 15 the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken".
Further more, it is interesting to note here that the RPF officials who allegedly apprehended the accused along with the case property, did all the documentation ( i. e. preparation of seizure/arrest memo, disclosure statement, confessional statement) at the spot of apprehension of accused, but have nowhere explained as to why they were carrying the papers, stamp pad etc. while being on patrolling duty. It is not disputed that the patrolling parties of RPF are not obliged to carry the articles mentioned above while leaving the posts for patrolling. It is difficult to understand as to why the RPF officials were carrying the abovesaid articles in this case. The RPF officials have further failed to explain as to how they could complete/fill the said documents without any hard surface to place the documents on, as none of the documents bear any mark of damage which is bound to occur in the absence of any hard surface to place the documents on. This court is unable to comprehend the suspicious conduct of the said RPF officials. It is difficult to believe that the documentation allegedly done by the RPF officials was in fact done at the spot of apprehension. Even if the said documents are believed to be true for the sake of arguments, still this Court could not ignore that the entire documentation done at the spot of alleged apprehension of the accused while in possession of the railway property and the consequent enquiry anticipated under Section 8 of the Act was conducted by the person who was a part of the team of RPF officials which allegedly apprehended the accused red handed. In such circumstances chances of prejudice could not be ruled out.
C.C. No. 27/01 11of 15
20. Lastly, the only material that is left on record against the accused is his confessional statement allegedly recorded by the RPF Officials at the spot of apprehension. Ld. PP for RPF has argued that the confessional statement made by the accused to RPF is admissible in evidence. No doubt the confessional statement recorded by RPF officials is admissible in evidence as observed by the Hon'ble Apex Court in Bal Kishan A. Devi Dayal vs. State of Maharashtra, AIR 1981 SC 379. However, the observations made by the Hon'ble Court in Bal Kishan's case do not, in the considered opinion of the court, preclude this court from assessing the attending circumstances to ensure that the confessional statement was voluntary in nature or not. It is not disputed that the accused was apprehended after a brief chase by the RPF Officials who are presumed, at this stage, to have been uniformed and probably armed at the relevant time. This court fails to understand as to how a person allegedly apprehended by uniformed and armed RPF Officials (whose uniform is identical to the one worn by local/State police) could be free from any fear, mental pressure or be even headed at the time of making the alleged confessional statement or could confide in the RPF officials who were admittedly unknown to him. In these circumstances, this court could not reasonably believe the absence of any pressure upon the accused at the relevant time. This court has already held in the preceding paragraphs that the documentation done at the spot by the RPF officials is not entirely free of doubts. Extra judicial confessions like the one in hand are always considered to be a weak piece of evidence. In the absence of any corroborative material and the absence of any public/independent witness who could depose about the sanctity of the confessional statement available on record, this court is not inclined to act upon the same and convict the accused.
C.C. No. 27/01 12of 15
21. In view of the above mentioned observations, this court is of the considered opinion that prosecution fails to prove the charges against the accused beyond any reasonable doubt as not only the recovery of the case property is clouded with doubts, even the procedural requirements have not been complied with by RPF without any explanation as discussed in the preceding paragraphs. It is a settled legal preposition that in case of doubt, benefit shall be given to the accused. In case titled Pratap Vs State AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that:
"The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded".
In case titled Sohan and another Vs State of Haryana and another (2011)3 SCC 620 it has been observed by Hon'ble Supreme Court that:
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. It this case, C.C. No. 27/01 13of 15 if only the Sessions Judge had remained himself of the above mentioned basis or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided".
In case titled Surender Kumar & Anr Vs The State, 2007 (2) JCC 1003 it has been observed by Hon'ble High Court of Delhi that:
"Benefit of doubtwhere there is a reasonable doubt and when two incredible versions confront the court, the court should give benefit of the doubt to the accused and it is not safe to sustain conviction".
22. The accused Jai Lal Aabuddin deserves benefit of doubt and is accordingly acquitted of all charges.
Announced in the open court
this 17th day of January, 2013
LOVLEEN
MM03 (Central), Delhi
C.C. No. 27/01 14of 15