Delhi District Court
State vs . Suresh Sharma & Ors. on 28 March, 2007
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Suresh Sharma & Ors.
CC No. 30/05
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 223/05
b) Name of the complainant : SI/RPF Ram Kishan
c) The name & add. of accused : 1) Suresh Sharma,
S/o. Jagdish Sharma,
R/o. Vagabound, Gali No. 2,
Ram Mandir, Village Shakur Pur
Delhi.
(Already convicted vide order
dated 26.04.2006).
2) Raju Kumar Gupta,
S/o. Pawna Gupta,
R/o. Jhuggi Meter Gauge Siding,
Shakur Basti, Delhi
(Already convicted vide order
dated 26.04.2006).
3) Shirajuddin, S/o. Shaukat Ali,
R/o. House No. WZ 250, Char
Khambe Wali Gali, Shakur Pur,
Delhi
(Already convicted vide order
dated 26.04.2006).
4) Sunil Kumar Chaudhary,
S/o. Nilambar Chaudhary
R/o. G-25, Near Masjid,
Village Shakur Pur, Delhi.
d) Date of commission of
offence : 02.09.2005
e) Offence complained of : U/s 3 RP (UP) Act 1966
f) Plea of accused persons : Pleaded not guilty
g) Final Order : Convicted
h) Date of such order : 28.03.2007
Page No. 1
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 02.09.2005 at about 6.30 hours at KM No. 8/6.8 in the area of SSB within the jurisdiction of RPF Post SSB accused Sunil Kumar Chaudhary and other co-accused were apprehended by RPF staff and accused Sunil Kumar Chaudhary was found in possession of 7 bags of wheat as per seizure memo Ex. PW- 1/C worth of Rs. 2,000/- booked with railways as such belonging to Railway department reasonably suspected of having been stolen or unlawfully obtained and there by the 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 was summoned and copy of challan was supplied to him.
3. Prosecution in all to prove its case cited as many as 17 witnesses and out of them examined Four witnesses. Before proceeding to any conclusion let we analyse the testimony of the prosecution witnesses.
4. In pre-charge evidence prosecution examined PW-1 ASI Shiv Charan Sharma testified in his examination in chief that on 31.08.2005 he alongwith Ct. Bhim Singh, Ct. Ajad Singh, Ct. Ramesh Singh and Ct. Tara Chand found 7 bags each of 50 kg lying on the Page No. 2 ground on subsequent distance. They made nakabandi there but nobody came there as such they seized the case property vide memo Ex. PW-1/A. Site plan Ex. PW-1/B was prepared. On 02.09.2005 while on patrolling duty alongwith HC Reshan Pal, Ct. Sushil and HC Rajender Prasad on patrolling duty they received secret information that the said theft was committed by Suresh Sharma, Raj Kumar, Shirajuddin and Sunil Kumar who are hiding in the said area. At about 6.30 hours as per secret informer at KM No. 8/6-8 they saw accused persons who were hiding in bushes and on seeing them accused tried to ran away from there but they apprehended the accused persons. On enquiry they disclosed that on 31.08.2005 at about 5.15 hours they put down 7 bags of wheat from a train which was passing from there slowly but did not take away with them. Accused were arrested vide memo Ex. PW-1/C. Accused disclosed the facts vide statement Ex. PW-1/D. Accused voluntarily confessed their guilt vide their statement Ex. PW-1/E to H. Accused also pointed out place of theft vide memo Ex. PW-1/I. Rest of the enquiry was conducted by SI Ram Kishan. PW-1 correctly identified the seven gunny bags when shown to him in the court. Accused No. 4 cross examined PW-1 but nothing material came out of it.
5. PW-2 HC Mukesh Rao is one of the witness of recovery. He was accompanied with Enquiry Officer at the time of occurrence Page No. 3 and during the investigation and testified the same in his deposition before the court. Accused cross examined PW-2 in which he denied the suggestion put by the accused persons.
6. PW-3 Shri Gulzar Singh, AG-II, FCI testified that on 30.08.2005 a train of food grain Special BL2 to MAN MAD was loaded in his presence and wagon No. 1085 19-A vide loading particulars Ex. PW-3/A.
7. Thereafter pre-charge 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 26.04.2006 charge U/s. 3 of RP (UP) Act 1966 was framed out against all accused in which all accused except accused Sunil Kumar Chaudhary pleaded guilty and refused to claim trial. Accordingly vide order dated 26.04.2006 accused no. 1, 2 and 3 were convicted and sentenced. Thereafter case was proceeded against accused no. 4 Sunil Kumar Chaudhary.
8. In after-charge evidence prosecution examined PW-4 SI Ram Kishan who is the second Enquiry Officer. He testified that on 12.09.2005 further enquiry of this case was entrusted to him from ASI Shiv Charan. During the course of enquiry he recorded the statement of witnesses and got the case property verified from FCI Vide report Ex. PW-4/A and collected documents relating to consignment. After Page No. 4 completion of enquiry he submitted complaint against accused persons in the court.
9. During the course of trial accused no. 4 Sunil Kumar Chaudhary also pleaded guilty for the crime in question and moved application to this effect. Accusation was duly explained to accused no. 4 despite that he repeatedly pleaded guilty. Accordingly after- charge evidence was dispensed with. On 18.01.2007 statement of accused was recorded in which accused admitted all allegations put against him by the prosecution and prayed for lenient view.
10. 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 as such accused may be convicted in accordance with law. On the other hand accused no. 4 has pleaded guilty for the charge leveled against him and prayed for the lenient view.
11. Even otherwise the accused has moved application to plead his guilt which is Ex. D-1 and his statement has also been recorded to this effect. Accused was explained about the accusation despite that he repeatedly pleaded guilty. As such I am of the view that the accused has pleaded guilty voluntarily and without any pressure or coercion and he can be convicted. To this effect I rely Page No. 5 upon judgment passed in case titled as 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."
12. I also rely upon the observation taken 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 Page No. 6 by an officer-in-charge 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) - "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".
13. In view of the aforesaid discussion and facts and circumstances accused no. 4 Sunil Kumar Chaudhary, S/o. Nilambar Chaudhary is hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 28.03.2007. MM:DELHI.
Page No. 7
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Suresh Sharma & Ors.
CC No. 30/05
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
ORDER ON SENTENCE
Present: APP for RPF.
Accused/Convict Sunil Kumar Chaudhary 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 during the course of trial hence he may be released on undergone imprisonment.
Considering the nature of the offence and socio, economic condition of the accused/convict, accused/convict no. 4 Sunil Kumar Chaudhary, S/o. Nilambar Chaudhary is sentenced to imprisonment which is already undergone by him and fine of Rs. 2000/- I.D. 60 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 28.03.2007. MM:DELHI. Page No. 8 State Vs. Suresh Sharma & Ors. CC No. 30/05 PS : RPF/SSB U/s. 3 RP (UP) Act 1966 28.03.2007 Present: APP for RPF. Accused
Vide separate Judgment and order of today accused no. 4 Sunil Kumar Chaudhary, S/o. Nilambar Chaudhary 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 28.03.2007 Page No. 9