Delhi District Court
State vs . Vinod Kumar @ Pappu & Ors. on 27 March, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Vinod Kumar @ Pappu & Ors.
CC No. 09/98
PS : RPF/NDLS
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 478/03
b) Date of Institution : 31.07.2003
c) Name of the complainant : IPF/RPF D.S. Yadav
d) The name & add. of accused : 1) Vinod Kumar @ Pappu,
S/o. Sunder Lal,
R/o. 921, Sarai Nazar Ali,
Ghaziabad, Uttar Pradesh.
2) Raj Kumar Yadav,
S/o. Vishwanath Yadav,
R/o. Village & PS Badlapur,
Dist. Jaunpur, Uttar Pradesh
(Already convicted vide order
dated 12.05.1999)
3) Jamal @ Paua,
S/o. Alam @ Salauddin,
R/o. House No. 121, Gali No. 10
Mirjapur, Uttar Pradesh.
(Already convicted vide order
dated 12.05.1999)
4) Ram Nath, S/o. Gena Raut,
R/o. 3/471, Block No. 3,
Trilok Puri, Delhi.
(Already convicted vide order
dated 12.05.1999)
5) Ramakant @ Amar Pal,
S/o. Ram Lakhan,
R/o. Village Kalhua,
PS Badlapur, Dist. Jaunpur.
(Declared as Proclaimed
Offender vide order dated
15.10.1998)
Page No. 1
e) Date of commission of
offence : 27.01.1998
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 27.03.2008
i) Final Order : Convicted
j) Date of Judgment : 27.03.2008
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 27.01.1998 RPF officials namely IPF D.S. Yadav, HC Keshav Kumar, HC Siriniwas and Ct. Ram Kumar were on patrolling duty at PF No. 2/3, NDLS. At about 5.00 hours they saw a rehri which was standing near Coach No. CR No. 9318 Sleeper Class of Train No. 1054, in which 3 bundles were kept. They also saw five persons there out of which two persons picked one bundle from the rehri and loaded the same in the door of said Coach towards Delhi End. The other two persons also picked one bundle and loaded the same towards NZM end. The fifth person was holding one package on the rehri. The RPF officials had suspicion over those persons as such they reached at the spot and apprehended those persons. The person who was holding package on the rehri disclosed his name as Vinod Kumar whereas other disclosed their names as Raj Kumar Yadav, Jama @ Paua, Ram Nath and Ramakant @ Amarpal. On checking the package which accused Vinod was holding was found Page No. 2 containing railway marka NDLS 492123 P2, HWH and the other two packages were found holding package bearing railway marka no. 492095 P3 HWH. All accused persons were enquired about the bundles/packages but they could not account for their possession over the said bundles. Accordingly bundles were taken to RPF possession and accused persons were arrested. Thereafter after completion of necessary enquiry, complaint was prepared against all accused persons and filed in the court for trial.
2. Accused no. 1 was summoned whereas accused nos. 2 to 5 were produced from judicial custody. Copy of complaint and other documents were supplied to accused persons.
3. In precharge evidence PE prosecution examined PW1 Shri Suresh Chander, Marker. During the course of trial accused no. 5 remained absented for several dates as such after following due procedure, vide order dated 15.10.1998 accused no. 5 was declared as Proclaimed Offender.
4. Thereafter prosecution examined PW2 IPF D.S. Yadav, PW3 Ms. Vimla Rani, Senior Parcel Clerk and PW4 Shri A.K. Dubey, Senior Parcel Clerk. Thereafter precharge PE was closed. A prima facie case was made to frame charge against accused persons. Accordingly vide order dated 10.05.1999 charge for offence punishable U/s. 3 RP (UP) Act was framed out against accused nos. 1 to 4 and when contents of the same were read over to them, accused Page No. 3 no. 1 pleaded not guilty whereas accused nos. 2 to 4 pleaded guilty. Accordingly vide order dated 10.05.1999 accused no. 2 to 4 were convicted and vide order dated 12.05.1999 they were sentenced for undergone imprisonment for offence punishable U/s. 3 RP (UP) Act. Thereafter case proceeded against against accused no. 1 Vinod Kumar.
5. In aftercharge evidence prosecution examined PW1 to PW4, PW5 HC Keshav Kumar, PW6 Ct. Ram Kishan and PW7 SI Sher Singh Beniwal. Thereafter PE was closed and on 24.10.2005 statement of accused Vinod Kumar was recorded U/s. 313 Cr.P.C. in which he denied each and every incriminating evidence led by the prosecution against him and submitted that on 26.01.1998 he went to see off his relatives at station in Malka Express from where he was picked up and taken to custody. However, accused Vinod Kumar refused to lead any evidence in his defence.
6. I have heard learned APP for the State and accused Vinod Kumar and carefully gone through the material placed on record.
Learned APP for RPF has submitted that the prosecution has to prove its case against accused beyond reasonable doubt and all witnesses as cited are examined except Ct. Srivastava and his non examination does not affected the case of the prosecution. All witnesses have duly supported the case of the prosecution and corroborated the testimony of each other on the material points. On Page No. 4 the contrary there is no iota of evidence to disbelieve the testimony of PWs. The contentions raised by accused Vinod Kumar are based on surmises and conjuncture and has no legs to stand in comparison to the testimony of the prosecution witnesses. Even otherwise accused nos. 2 to 4 have already been convicted in this case since they have admitted their guilt before the court. Therefore, accused Vinod Kumar is liable to be convicted.
On the other hand accused has denied the case of prosecution and stated that he has been falsely implicated in this case.
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.
8. It is not necessary that the possession should be a subsisting possession for the purposes of Section 3 of RP (UP) Act. It is sufficient if the accused was proved to have been in possession of that property at any point of time. In Halsbury's Laws of England, IVth Edn., Vol. 35 in para 1214 at p. 735 the word "possession" is used in various contexts and phrases, for example in the phrase Page No. 5 "actual possession" or "to take possession" or "interest in possession" or "estate in 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 Page No. 6 "possession" implies a physical capacity to deal with the thing as we 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.
9. In the present case prosecution in order to prove the case property as railway property examined PW1 Shri Suresh Chand, Marker, PW3 Ms. Vimla Rani, Senior Parcel Clerk and PW4 Shri A.K. Dubey, Senior Parcel Clerk. PW1 testified that on 24.01.1998 during his duty he wrote railway marking on three packages booked for Howrah i.e. SF241 NDLS 492123 P2 HWH on one package and SF 241 NDLS 492095 P3 HWH on two other packages. PW1 identified the case property and submitted that these are bearing the same Page No. 7 marka which I put on 24.01.1998. PW3 testified that on 24.01.1998 three packages alongwith challan were received by them and she put marking on the same and got the railway marka engraved from Marker Suresh Chand thereafter she handed over packages to Parcel Clerk. Thereafter she remained on rest on 25.01.1998 and 26.01.1998 was holiday. She joined her duty on 27.01.1998 and found that two packages of marking 2095 and one of 2123 were found short. She was informed that those packages were lying with RPF. Her statement was recorded. PW4 Shri A.K. Dubey, Senior Parcel Clerk brought the delivery record and testified that on 04.02.1998 packages bearing no. 492095 and 492123 were found short. The original delivery record and RR are Ex. PW4/A & B. His statement recorded in this regard is Ex. PW4/C. The testimony of PW1, PW3 and PW4 remained unrebutted since no questions were preferred in their cross examination. Therefore, these witnesses have proved the recovered property is belonging to railway and was stolen before its delivery, hence the case property is proved as railway property.
10. To prove the other ingredients prosecution examined PW 2 IPF D.S. Yadav, PW5 HC Keshav Kumar PW6 Ct. Ram Kishan and PW7 SI Sher Singh Beniwal who all are the witnesses of the spot. PW2 IPF D.S. Yadav is the Enquiry Officer who testified that on 27.01.1998 at about 5.00 hours he alolngwith HC Keshav Kumar, HC Page No. 8 Sriniwas and Ct. Ram Kishan during patrolling saw a rehri near Coach No. 9318 Sleeper Class of train No. 1054. Two persons loaded one package towards Delhi end side door of the coach while two other persons loaded one package towards NZM side door of the coach. One person was holding one case on the rehri. They had suspicion over them as such they apprehended those persons. The person who was holding one package near rehri disclosed his name as Vinod Kumar whereas other disclosed their names as Raj Kumar Yadav, Jama @ Paua, Ram Nath and Ramakant @ Amarpal. On checking accused Vinod was found in possession of one bundle containing railway marka NDLS 492123 P2, HWH and the bundle recovered from other two persons was bearing railway marka no. 492095 P3 HWH. All accused persons were enquired about the bundles but they could not account for their possession over the said bundles. Case property was recovered vide memo Ex. PW2/A. All accused persons were arrested and personally searched vide memo Ex. PW2/B to F. Accused persons pointed out the place of theft vide memo Ex. PW 2/G. Case was registered against all accused persons. Confessional statements of accused persons was recorded which are Ex. PW2/H to M. PW2 identified the case property as well as accused persons in the court except accused no. 5. In aftercharge PE PW2 came forward for his cross examination but he was not cross examined by accused Vinod. Even otherwise PW5 and PW6 have also corroborated the Page No. 9 testimony of PW2. Hence, the testimony of all PWs is found trustworthy, believable and unrebutted.
11. 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 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."Page No. 10
"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."
12. 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 Vinod Kumar has not given any suggestion to PW 2 or any other witness in the cross examination that confessional Page No. 11 statements Ex. PW2/H was not made by him or that the same does not bear his signature or that he was forced to put his signature on the same under threat or duress.
13. 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) Page No. 12 "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".
14. Prosecution witnesses have proved the date, time and place of incident and also proved the identity of case property as well as that of accused. I do not find any contradiction or discrepancy among the testimony of prosecution witnesses to disbelieve the same. Even otherwise accused has not pleaded any grudge against the RPF officials owing to which he might have impleaded in this case falsely.
15. In view of the the discussion above, I find that the evidence produced by the prosecution is intensively strong. The case of the prosecution is safely entrenched behind undeniable facts. The evidence on record evinces the guilt of the accused Vinod Kumar. Therefore, accused Vinod Kumar @ Pappu, S/o. Sunder Lal is hereby convicted for offence punishable U/s. 3 RP (UP) Act.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 27.03.2008 MM:DELHI.
Page No. 13
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Vinod Kumar @ Pappu & Ors.
CC No. 09/98
PS : RPF/NDLS
U/s. 3 RP (UP) Act 1966
ORDER ON SENTENCE
Present: APP for RPF.
Convict Vinod Kumar @ Pappu on bail.
Heard on the point of sentence. It is submitted by the convict Vinod Kumar that he belongs to a very poor family. He has been facing trial since 1998 and he has already suffered a lot of mental pain and suffering due to his involvement in the present case. 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 Vinod Kumar @ Pappu, S/o. Sunder Lal is sentenced to period which is already undergone by him during the course of enquiry & trial with fine of Rs. 3,000/ I.D. 60 days S.I. in this case U/s. 3 of RP (UP) Act 1966.
Copy of order be given to the accused/convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 27.03.2008 MM:DELHI. Page No. 14 State Vs. Vinod Kumar @ Pappu & Ors. CC No. 09/98 PS : RPF/NDLS U/s. 3 RP (UP) Act 1966 27.03.2008 Present: APP for RPF. Accused No. 1 on bail. Accused Nos. 2 to 4 already convicted. Accused No. 3 is Proclaimed Offender. Arguments heard.
Vide separate Judgment and order of today accused Vinod Kumar @ Pappu, S/o. Sunder Lal is convicted and sentenced for the offence punishable U/s 3 of RP (UP) Act 1966.
File be consigned to R.R. and same be revived as and when accused no. 5 is arrested.
(S.K. Gautam) MM/Delhi 27.03.2008 Page No. 15