Delhi District Court
State vs . Deepak Kumar on 4 December, 2021
CNR no. DLCT020205222021
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR no. DLCT020205222021
CIS No. 2615/21
State Vs. Deepak Kumar
CC No. 06/21
PS. RPF/Delhi Cantt
U/s. Section 3 of The Railway Property (Unlawful
Possession) Act 1966
JUDGMENT
1) The date of commission of offence : 05.08.2021
2) The name of the complainant : SI Kavita Kumar
3) The name & parentage of accused : Deepak Kumar S/o Ramanand.
4) Offence complained of : Section 3 of The Railway Property (Unlawful Possession) Act 1966
5) The plea of accused : Pleaded not guilty
6) Final order : Convicted
7) The date of such order : 04.12.2021 Date of Institution : 05.10.2021 Judgment reserved on : 04.12.2021 Judgment announced on : 04.12.2021 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2021.12.04 16:22:51 +0530 State Vs. Deepak Kumar; CIS No. 2615/21; CC NO. 06/21; PS. RPF/Delhi Cantt; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 1/8 CNR no. DLCT020205222021 BRIEF REASONS FOR THE JUDGMENT:
1) The case of the railways is that on 05.08.2021 at about 10:00 hours near Gumti of Palam Railway Station within the area of RPF/DEC accused was apprehended by RPF Staff and on his instance 24 pendrol clips were recovered which were stolen by him from railway track kilometer no. 18/8-18 near Palam Railway Station on 09.07.2021, which was a railway property, suspected of having been stolen or obtained unlawfully.
2) After inquiry, complaint was filed by the inquiry officer.
Vide order dated 05.10.2021, this court dispensed with the recording of pre-summoning evidence as the complaint was made by the public servant in discharge of his official duties. Accused was produced before the court and pre-charge evidence was recorded. Pre-charge evidence was closed and the arguments on the point of charge were heard. Charge for the offence U/s 3 RP (UP) Act was framed upon accused to which he pleaded not guilty and claim trial. Accused refused to further cross-examine the witnesses of the railways who deposed during pre-charge evidence. After considering the submissions of the accused no further post charge evidence was lead and the matter was fixed for recording of statement of accused. Thereafter statements of accused was recorded in which accused denied all the allegations and opted not to lead defence evidence. Final arguments were advanced by Ld PP for RPF and Ld Defence Counsel.
3) The evidence lead during the stage of pre-charge evidence is to considered. Five witnesses were examined by the Railways and all were cross-examined by the Ld Defence Counsel. It is necessary to go through the testimony of these five witnesses to Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2021.12.04 16:22:59 +0530 State Vs. Deepak Kumar; CIS No. 2615/21; CC NO. 06/21; PS. RPF/Delhi Cantt; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 2/8 CNR no. DLCT020205222021 appreciate as to whether the prosecution has been able to discharge its burden of proof or not.
4) PW1- ASI Daryao Singh deposed that on 09.07.2021 the present case was registered by SI Sandeep vide DD Ex.PW1/A at about 13:45 hours against unknown person for theft of 80 pendrol clips from kilometer no. 18/8-18/18 within the area of Palam for which the inquiry was marked to him on 10.07.2021 and during the inquiry he recorded the statement of SI Sandeep vide Ex.PW1/B and made search of the stolen property from various junk dealers but of no avail. He deposed that on 04.08.2021 W/SI Kavita informed him vide DD no. 37 Ex.PW1/C at about 17:50 hours regarding the disclosure confessional statement made by the accused (correctly identified) to the effect that he committed theft of 80 iron rings (pendrol clips) nearby Palam Station railway track. He deposed that the accused was arrested in this case vide Ex.PW1/D at about 17:25 hours and made a disclosure statement Ex.PW1/E and pointed out the place from where the pendrol clips were concealed by him about 30 days back in bushes. He deposed that at the instance of the accused on 05.08.2021 24 pendrol clips were recovered near kilometer no 19/38-40 at about 10:00 hours which were seized vide seizure Ex.PW1/F. He deposed that further inquiry was done by W/SI Kavita. During his testimony the seal card was proved as Ex.P1 while the old seal card as Ex.P2. The case property i.e case property were given Ex.P3 to Ex.P27.
5) PW2 IPF Pankaj Gupta deposed that on 09.07.2021 he was looking after the charge of Inspector DEC and on that day after receiving the information regarding the theft of pendrol clips in Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2021.12.04 16:23:07 +0530 State Vs. Deepak Kumar; CIS No. 2615/21; CC NO. 06/21; PS. RPF/Delhi Cantt; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 3/8 CNR no. DLCT020205222021 between kilometer no. 18/8-18 he reached the spot at about 10:05 hours vide DD no. Ex.PW2/A and joint theft note Ex.PW2/B was prepared. He deposed that 80 pendrol clips were found deficient and the case for the offence U/s 3 RP(UP) Act was registered against unknown person at about 13:45 hours at RPF/DEC. He deposed that the inquiry was done by ASI Daryao Singh who recorded his statement Ex.PW2/C.
6) PW3 SSE Rajeev Ranjan deposed that on 09.07.2021 at about 10:30 hours 80 pendrol clips were found missing for which the theft memo Ex.PW3/A was prepared.
7) PW4 W/SI Kavita Kumari deposed that 04.08.2021 the inquiry of the present case was marked to her. She deposed that on 04.08.2021 ASI Daryao Singh arrested the accused Deepak (correctly identified) in CC no. 07/21 and informed regarding the disclosure of the accused as to the theft committed from the railway track about 25-30 days back. She deposed that the accused was arrested in the present case vide Ex.PW1/D and thereafter the accused on 05.08.2021 made a disclosure statement Ex.PW4/A to the effect that he can point out the place where the stolen pendrol clips were concealed by him in bushes near gumti of Palam Railway Station. She deposed that at the instance of the accused 24 pendrol clips were recovered which were seized vide seizure memo Ex.PW1/F. She deposed that on 14.09.2021she got the case property verified from SSE Sunil Kumar vide his report Ex.PW4/C which was to the effect that pendrol clips are railway property used for fastening sleepers with the track not available in market. She deposed that accused made confessional statement Ex.PW4/D and Ex.PW4/E. She deposed that after inquiry the Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2021.12.04 16:23:13 +0530 State Vs. Deepak Kumar; CIS No. 2615/21; CC NO. 06/21; PS. RPF/Delhi Cantt; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 4/8 CNR no. DLCT020205222021 complaint was submitted in the court.
8) PW5 Ct Gyanveer deposed that on 05.08.2021 the case property of the present case was deposited in the malkhana vide DD no. 23 Ex.PW1/G which was taken out for verification on 04.09.2021 and re-deposited in the malkhana vide DD no. 38 Ex.PW5/A.
9) Before appreciating the testimony of prosecution witnesses the necessary ingredients of the offence U/s 3 RP UP Act as explained by Hon'ble Apex Court in judgment titled as State of Maharashtra vs Vishwanath Tukaram (1979) (4) SCC 23 are required to be mentioned. These ingredients are as follows:
a) The property in question should be a railway property;
b) It should be reasonably suspected of having been stolen or unlawfully obtained; and
c) It should be found or proved that accused was or had been in possession of that property.
10) The first poser is whether the property recovered from the possession of accused was a railway property or not. On this aspect the testimony of PW1 and PW4 are relevant. PW1 and PW4 deposed that the accused was found in the possession of railway i.e 24 pendrol clips. PW4 categorically deposed that on 14.09.2021 she got the case property examined which are 24 pendrol clips used in the railways for fastening sleepers with the track and not available in open market. The report is Ex.PW4/C. I found no reason to disbelieve the testimony of PW4. There is nothing on record which could be the reason or motive for PW4 to falsely implicate the accused. There is no contradiction at all in the testimony of RPF officials on the fact that the case property Digitally signed by KAPIL KAPIL KUMAR Date:
KUMAR 2021.12.04
16:23:20
+0530
State Vs. Deepak Kumar; CIS No. 2615/21; CC NO. 06/21; PS. RPF/Delhi Cantt; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 5/8 CNR no. DLCT020205222021 was recovered was railway property. In view of the testimony of railway officials, the report as to the verification of the property and the fact that property recovered is exclusively used in railways and is not available in open market proves on record that the property recovered i.e 24 pendrol clips was railway property.
11) On the poser of the possession of the accused as to the railway property and the poser as to the theft or unlawfully having the possession of railway property, the testimony of PW1 and PW4 are relevant. PW2 and PW3 proved the fact as to the theft of pendrol clips and theft memo Ex.PW3/A. PW1 and PW4 deposed that the accused was found in the possession of i.e 24 pendrol clips. The testimony of PW4 is also specific as to the confessional statement made by the accused thereby voluntarily admitting his guilt regarding the theft of railway property. The 24 pendrol clips has been proved to be the railway property in view of the above- discussion. The confessional statement made by the accused to the inquiry officer is also relevant and admissible on the strength of judgment of Hon'ble Apex Court titled as Balkishan A.Devi Dayal & Ors. Vs State of Maharashtra 1981 AIR(SC) 379 wherein it was held that character of inquiry under Railway Property (Unlawful Possession) Act is different from the investigation under the Code of Criminal Procedure and therefore any confession before an officer of Railway Police Force in the course of his inquiry is not to be excluded from evidence U/s 25 of Indian Evidence Act. It was held by Hon'ble Bombay High Court in the judgment titled as Saleem Mohd Babul Meniar Vs State of Maharashtra 2001 Criminal Law Journal 58 that the conviction can be based for the offence U/s 3 RP (UP) Act on the Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2021.12.04 16:23:26 +0530 State Vs. Deepak Kumar; CIS No. 2615/21; CC NO. 06/21; PS. RPF/Delhi Cantt; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 6/8 CNR no. DLCT020205222021 basis of the confessional statement of the accused. The confessional statement of the accused has been proved on record by the inquiry officer PW4. The confessional statement is categorical as to the possession of accused of the railway property.
12) In the cross-examination of PW1 and PW4 only bald suggestions were made by the Ld Defence Counsel that the case property was not recovered from the possession of accused. This suggestion in itself is not sufficient to discard the testimony of railway police official made on oath. There is nothing on record as to any circumstance which could be the reason for the railway police officers to falsely implicate the accused. By virtue of testimony of railway police officers and documents proved on record the possession of accused of the 24 pendrol clips, which is a railway property, has been proved on record.
13) No explanation given by the accused as to his possession of railway property. In the judgment titled as The Public Prosecutor Vs Shariq Galib and others 1975 Criminal Law Journal 952 Hon'ble High Court of Andhra Pardesh observed that- once it is established that the property recovered is a railway property and is reasonably suspected to having been stolen, the burden shift upon the accused to show how he came into the lawful possession of the same. The Hon'ble Allahabad High Court in the judgment titled as Kallu Ram Vs State of UP 1975 Criminal Law Journal 160 observed where a person was found to be in possession of railway property, it was only that person who could explain how it came into the possession.
14) In the case in hand there is no explanation whatsoever by the accused as to his possession of railway property. The pendrol Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2021.12.04 16:23:33 +0530 State Vs. Deepak Kumar; CIS No. 2615/21; CC NO. 06/21; PS. RPF/Delhi Cantt; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 7/8 CNR no. DLCT020205222021 clips used in the railways is not something which could be used somewhere else or which could be procured easily from the market. They are of a special make to be used in railways only. The accused being found in the possession of 24 pendrol clips and has not furnished any explanation as to the possession clearly reveals that the pendrol clips was either obtained by theft or obtained unlawfully.
15) Accordingly, all the ingredients of offence U/s Section 3 of the Railway Property (unlawful Possession) Act 1966 Act stands satisfied. Accused is hereby convicted for the offence U/s Section 3 of the Railway Property (unlawful Possession) Act 1966 Act. Copy of the judgment be supplied free of cost. Be heard on point of sentence.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2021.12.04
16:23:39 +0530
Announced in the open court (KAPIL KUMAR)
on 04.12.2021 Metropolitan Magistrate-07
Central District, Tis Hazari Courts/Delhi State Vs. Deepak Kumar; CIS No. 2615/21; CC NO. 06/21; PS. RPF/Delhi Cantt; U/s. Section 3 of The Railway Property (Unlawful Possession) Act 1966, 8/8