Delhi District Court
State vs . Vakil & Ors. on 6 September, 2007
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Vakil & Ors.
CC No. 31/06
PS : RPF/TKD
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 248/06
b) Date of Institution : 05.12.2006
c) Name of the complainant : SI/RPF P.K. Awathi
d) The name & add. of accused : 1) Vakil, S/o. Panna Lal,
R/o. Madanpur Khadar,
JJ Colony, House No. A,
Pocket 247, PS Sarita Vihar,
New Delhi.
(Already convicted vide order
dated 22.02.2007)
2) Suraj Pal @ Sujjan,
S/o. Chote Lal,
R/o. House No. 44A, Block C,
Harkesh Nagar, PS Okhla
PhaseI, New Delhi.
(Already convicted vide order
dated 22.02.2007)
3) Pawan, S/o. Naresh Kumar,
R/o. Transit Camp, House No.
B485, Govindpuri, PS Kalkaji,
New Delhi.
(Already convicted vide order
dated 22.02.2007)
4) Raju, S/o. Ram Prasad,
R/o. Madanpur Khadar, J.J.
Colony, House No. A285, PS
Sarita Vihar, New Delhi.
(Already convicted vide order
dated 16.03.2007)
Page No. 1
5) Pan Kishna @ Manki,
S/o. Late Digan Chand Das,
R/o. Village Tuglakabad Pahadi,
Gali No. 17, House No. 8, PS
Okhla Phase I, New Delhi.
(Already convicted vide order
dated 22.02.2007)
6) Nawab, S/o. Mir Khan,
R/o. Junk shop,
near Golchakkar, Govindpuri,
PS Kalkaji, New Delhi
Permanent Address
Muhalla Khurja Baradari,
PS Kotwali Khurja,
Dist. Bulandshahar, U.P.
e) Date of commission of
offence : 10.10.2006
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 06.09.2007
i) Final Order : Convicted
j) Date of Judgment : 06.09.2007
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 10.10.2006 at 11.30 hours at Marsheling Yard, TDK accused no. 1 to 5 were apprehended by the RPF staff who were found in unlawful possession of 1 OHE weight each. Accused were enquired and they disclosed and pointed out the junk Page No. 2 shop of accused no. 6 Nawab. At about 16.30 hours at Golchakkar, Govindpuri accused Nawab was also apprehended by RPF staff and he was found in possession of 4 OHE Weights, 10 pendul clips and one anker plate worth of Rs. 5,500/. Accused persons committed theft of articles as mentioned above 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 put to the court for trial. The accused was summoned and copy of complaint was supplied to him.
3. Prosecution in all to prove its case cited as many as 8 witnesses and examined 4 witnesses. Before proceeding to any conclusion let we analyse the testimony of the prosecution witnesses.
4. In precharge evidence prosecution examined PW1 IPF Yogender Singh testified that on 10.10.2006 he alongwith SI P.K. Awathy, Ct. Veer Pal Singh and Ct. Mahi Pal Singh while on patrolling in the area of TKD marshelling yard apprehended accused Vakeel, Suraj Pal @ Surja, Pawan, Raju, Pan Krishna @ Monky @ Bengali while carrying 5 anker plates, one with each unlawfully at about 11.30 PM near east cabin. All accused persons were arrested Page No. 3 on the spot and property was seized vide memo Ex. PW1/A. Accused were personally searched vide memo Ex. PW1/B and accused persons made disclosure statement Ex. PW1/C and also pointed out towards the place of theft vide memo Ex. PW1/D. Accused also made confessional statement which are Ex. PW1/E, F, G, H and I. They also disclosed the name of junk dealer Nawab who was running junk shop of railway property at Gol Chakkar, Govind Puri. On the same day at about 16.30 hours shop of the accused Nawab raided where accused Nawab was also present. In search 4 OHE weights, 10 pendrul clips and 1 ancher plate were recovered from the unlawful possession of accused Nawab and same were seized vide memo Ex. PW1/J and accused was personally searched vide memo Ex. PW1/K. Accused Nawab also made disclosure statement which is Ex. PW1/L. Site plan Ex. PW1/N and O were prepared on spot. On the same day a case was registered against accused at RPF Post TKD. All written work was done by SI P.K. Awasthy under his direction. Further enquiry of case was done by SI P.K. Awasthy. PW1 identified the case property in the court.
5. PW2 Shri G.R. Panwar, JEI, PWay, TKD is examined as expert witness. He testified examination of case property i.e. 10 pendrul clips, 5 anchor plates and 1 more anchor plate conducted by him on 12.11.2006 at RPF Post TKD and his report Ex. PW2/A Page No. 4 issued by him in this respect in which he opined that the case property is a railway property. PW2 identified the case property in the court.
6. PW3 Shri Sone Lal, SSE is also examined one of the expert witnesses. He testified examination conducted by him on 17.11.2006 of case property i.e. OHE weights, 3 weights of 40 kg and one weight of 20 kg at RPF Post TKD and report Ex. PW3/A issued by him in this regard in which he opined that the case property is railway property. PW3 identified the case property in the court.
7. Thereafter precharge 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 08.02.2007 charge for offence punishable U/s. 3 of RP (UP) Act 1966 was framed out against all accused persons to which accused no. 1 to 5 pleaded guilty while accused no. 6 who was charged separately pleaded not guilty and claimed trial. Accordingly vide order dated 22.02.2007 accused no. 1, 2, 3, & 5 and vide order dated 16.03.2007 accused no. 4 were convicted and sentenced. Thereafter case was proceeded against accused no. 6.
8. In aftercharge evidence PW1 and PW3 came forward Page No. 5 for their cross examination but accused no. 6 did not cross examine them despite opportunity granted.
9. Thereafter prosecution examined PW4 Ct. Mahi Pal who is one of the witnesses of the spot. He was accompanied with the Enquiry Officer at the time of occurrence and during the enquiry and testified the same in his deposition before the court. He also testified documents prepared in his presence.
10. During the course of trial accused no. 6 also pleaded guilty for the crime in question and moved application to this effect. Accusation was duly explained to accused no. 6 despite that he repeatedly pleaded guilty. Accordingly aftercharge evidence was dispensed with. On 06.09.2007 statement of accused U/s. 281 Cr. P.C. was recorded in which accused no. 6 admitted all allegations and prayed for lenient view.
11. 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 no. 6 may be convicted in accordance with law. On the other hand accused no. 6 has pleaded guilty for the charge leveled against him and prayed for the lenient view. Even otherwise accused no. 6 has moved application to plead his guilt which is Ex. D1 and his statement has Page No. 6 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 no. 6 has pleaded guilty voluntarily and without any pressure or coercion, therefore, accused is liable for conviction. To this effect I rely upon judgment passed in case titled as as "Sal im 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 "Balk ishan 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 Page No. 7 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 offences 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" .
13. In view of the aforesaid discussion and facts and circumstances accused no. 6 Nawab, S/o. Mir Khan is hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 06.09.2007. MM:DELHI.
Page No. 8
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Vakil & Ors.
CC No. 31/06
PS : RPF/TKD
U/s. 3 RP (UP) Act 1966
ORDER ON SENTENCE
Present: APP for RPF.
Accused/Convict Nawab 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 imprisonment of 10 days 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 accused/convict, accused/convict Nawab, S/o. Mir Khan is sentenced to imprisonment which is already undergone by him and fine of Rs. 5,000/ I.D. 30 days SI in this case U/s. 3 of RP (UP) Act 1966. Benefit U/s. 428 Cr. P.C. is also awarded to the accused.
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 06.09.2007. MM:DELHI.
Page No. 9
State Vs. Vakil & Ors.
CC No. 31/06
PS : RPF/TKD
U/s. 3 RP (UP) Act 1966
06.09.2007
Present: APP for RPF.
Accused Nos. 1 to 5 already convicted.
Accused No. 6 on bail.
PW Ct. Mahi Pal in person.
PW4 Ct. Mani Pal is examined separately today and discharged accordingly.
At this stage accused no. 6 is pleading guilty for the charge leveled against him and has also moved an application to this effect. Accused no. 6 has been duly explained about the accusation despite that he is repeatedly pleading guilty, as such I am of the opinion that accused is pleading guilty voluntarily and without any pressure or coercion. Accordingly further PE is dispensed with. Let statement of accused no. 6 be recorded.
Statement of accused no. 6 U/s. 281 Cr. P.C. is recorded today separately in which accused admitted all allegations put against him by the prosecution.
Vide separate Judgment and order of today accused no. 6 Nawab, S/o. Mir Khan 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 06.09.2007 Page No. 10