Delhi District Court
State vs . Deepak on 17 April, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Deepak
CC No. 28/07
PS : RPF/NZM
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 290/07
b) Date of Institution : 24.12.2007
c) Name of the complainant : ASI/RPF Ram Mehar Singh
d) The name & add. of accused : Deepak Surya, S/. Nathu Lal,
R/o. Village & PS Amapara,
Dist. Durg, Chatishgarh.
e) Date of commission of
offence : 15.11.2007
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 17.04.2008
i) Final Order : Convicted
j) Date of Judgment : 17.04.2008
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 15.11.2007 RPF officials namely SI Ram Mehar Singh and Ct. Vijay KumarII during patrolling at PF No. 6/7, Delhi Side saw one person at iron cage carrying one package on his shoulder. On having suspicion they apprehended that person and checked the said package which was found containing railway marka 14/11 NZM 193466 P1 HYB and private marka R/PTD Books to Aisia Law House Hyderabad from ALD - Law Agency 16/2 Mathura Road, Page No. 1 Faridabad. Accused could not account for his possession over the said package and on further enquiry he disclosed to have stolen the same from the platform. The said package was taken to RPF possession and accused was arrested. Thereafter case was registered against accused and after completion of necessary enquiry, complaint was prepared and filed in the court.
2. Accused was produced from judicial custody and copy of complaint and other documents were supplied to him.
3. In precharge evidence prosecution examined PW1 SI Ram Mehar Singh, PW2 Shri Aman Narula and PW3 Shri Deepak Maghu, Parcel Clerk and precharge PE was closed. A prima facie case was made out to frame charge against accused. Accordingly vide order dated 03.03.2008 charge for offence punishable U/s. 3 RP (UP) Act was framed out against accused and when contents of the same were read over to accused in verbatim, he pleaded not guilty and claimed trial.
4. In aftercharge PE prosecution examined PW1 to PW3, PW4 Shri Ram Bhajan Meena, Parcel Clerk, PW5 Shri Ved Prakash, Marker and PW6 Shri Vineet Kumar Anand, Receipt Clerk and PE was closed. On 17.04.2008 statement of accused U/s. 313 Cr. P.C. was recorded in which accused denied each and every incriminating evidence led by the prosecution and stated that he is innocent and has been falsely implicated in this case.
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5. I have heard learned APP for the State and accused in person and have gone through the material placed on record.
6. I have heard Ld. APP for the State and accused in person and have gone through the material placed on record.
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.
If a person is found in possession of a property obtained through any of the means of Section 410 IPC, the property would be considered stolen and possession thereof unlawful, within the meaning of Section of 3 RP (UP) Act. "Unlawfully" means contrary to law. Illegal possession covered for Section 410 IPC and whatever other means covered by the term "unlawfully" is there. Possession not covered by Section 410 IPC also will be unlawful if it is obtained violating some other law. Hon'b le High Court of Allahabad had to consider this term in case titled as "Chet Ram Vs. State of UP" 1976 Cri LJ 585 "The accused along with his companions removed a bag from a wagon. When RPF personnel on duty chased him, he threw the bag on Page No. 3 the track and tried to run away. During trial, the accused took the plea that he was not arrested in possession of the bag but it was recovered from the track by the RPF." The leaned judge turned down this defence, convicted the accused and laid down that accused had removed the bag with the intention of exercising sole dominion over it, that the accused had the corporeal possession of the bag even if, he had thrown it and that the accused was seen in possession and it could be proved against him.
In Halsbury's Laws of England, IVth Edn., Vol. 35 in possession"' para 1214 at p. 735 the word "' is used in various contexts and phrases, for example in the phrase "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 Page No. 4 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 "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 Page No. 5 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.
8. In the instant case in order to prove the case property as railway property, prosecution examined PW2 Shri Aman Narula, PW 3 Shri Deepak Maghu, Parcel Clerk, PW4 Shri Ram Bhajan Meena, Parcel Clerk, PW5 Shri Ved Prakash, Marker and PW6 Shri Vineet Kumar Anand, Receipt Clerk.
PW2 Shri Aman Narula testified booking of one bundle containing law books by him with railway on 14.11.2007 vide bilty no. 193466. He further testified on 14.12.2007 he reached to RPF Post NZM on the request of SI Ram Mehar Singh and examined one parcel package which was bearing railway marka no. 193466 P1 HYB and private marka no. Asia Law House Hyderabad from ALD Law Agency 16/2 Mathura Road Faridabad. He examined that bundle and issued his report Ex. PW1/G. PW3 Shri Deepak Maghu, Parcel Clerk testified issuance of theft memo Ex. PW1/A by him on 15.11.2007 in respect of one package bearing railway marka no. 14/11 NZM 193466 P1 Hyb.
PW4 Shri Ram Bhajan Meena, Parcel Clerk testified that on 14.11.2007 he measured weight of consignment no. 193466 which was of 42 kg. The copy of RR is Ex. PW4/A. PW5 Shri Ved Prakash, Marker testified that on Page No. 6 14.11.2007 he put railway marka no. 193466 NZM to HYB in a consignment and identified the same in the court.
PW6 Shri Vineed Kumar Anand, Receipt Clerk testified booking of consignment vide RR No. 193466 NZM to HYB vide RR Ex. PW4/A and Forwarding Note Ex. PW4/B. None of the above witnesses is cross examined at any point of time by the accused persons, therefore, their testimony is found reliable, trustworthy and unrebutted. Hence, PW2 to PW6 have proved the case property as railway property.
9. To prove other ingredients of Section 3 RP (UP) Act prosecution examined PW1 SI Ram Mehar Singh. PW1 testified that on 15.11.2007 he alongwith Ct. Vijay KumarII apprehended accused at iron cage situated at Delhi Side, NZM while carrying one package unlawfully at about 2.30 hours. He checked the package and it was found containing marka no. 19/11 NZM 193466 P1 HYB and private marka no. R/PTD Book to Asia Law House Hyderabad from ALD Law Agency 16/2, Mathura Road, Faridhabad. Accused disclosed his name as Deepak. On enquiry accused admitted to have stolen the same from PF. Case property was taken to RPF possession and accused was arrested vide memo Ex. PW1/A. Accused made disclosure statement Ex. PW1/B. He prepared pointed out memo Ex. PW1/C. Confessional statement of accused was recorded which is Ex. PW1/D. Case was registered against accused at Post. During Page No. 7 enquiry he received theft memo. He prepared site plan. He got the case property verified from expert and recorded the statement of witnesses. After completion of enquiry, he prepared complaint and filed in the court for trial.
The whole testimony of PW1 remained unrebutted on the material points since accused did not prefer to put any question during his cross examination either in precharge or aftercharge PE.
10. 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 Page No. 8 question, he was elsewhere. He must prove it."
"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."
11. 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 has not given any suggestion to PW1 in the cross Page No. 9 examination that disclosure statement Ex PW1/B and confessional statement Ex. PW1/D were not made by him or that the same do not bear his thumb impression or that he was compelled to put his thumb impression on the same under threat or duress.
12. 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 Page No. 10 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. Prosecution witnesses have proved the date, time and place of occurrence 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 so as to implicate him falsely in this case.
14. In view of the aforesaid discussion and facts and circumstances of the case I come to the conclusion that prosecution has proved its case against accused. Accordingly accused Deepak Surya, S/. Nathu Lal is hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 17.04.2008 MM:DELHI. Page No. 11 IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Deepak CC No. 28/07 PS : RPF/NZM U/s. 3 RP (UP) Act 1966 ORDER ON SENTENCE Present: APP for RPF. Convict produced from J/C. Heard on the point of sentence. APP for the RPF
submitted that the prosecution has examined witnesses and proved its case hence convict is liable to be sentenced in accordance with law. On the other convict submitted that he belongs to a poor family. He further submitted that he has already undergone imprisonment of about 5 months 2 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 convict, convict Deepak Surya, S/. Nathu Lal is sentenced to Four Months R.I. and fine of Rs. 4,000/ I.D. 30 days S.I. in this case U/s. 3 of RP (UP) Act 1966. Benefit U/s. 428 Cr. P.C. is awarded to convict.
Copy of order be given to the convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 17.04.2008 MM:DELHI. Page No. 12 State Vs. Deepak CC No. 28/07 PS : RPF/NZM U/s. 3 RP (UP) Act 1966 17.04.2008 Present: APP for RPF. Accused produced from J/C.
PWs Shri Ram Bhajan Meena, Shri Ved Prakash, and Shri Vineet Kumar Anand in person.
PW4 Shri Ram Bhajan Meena, Parcel Clerk, PW5 Shri Ved Prakash, Marker and PW6 Shri Vineet Kumar Anand, Receipt Clerk are examined and discharged.
No other PW is present. PE is closed. Let statement of accused be recorded.
Statement of accused U/s. 313 Cr.P.C. is recorded today separately in which accused denied each and every incriminating evidence led against him by prosecution.
Vide separate Judgment and order of today accused Deepak Surya, S/. Nathu Lal 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 17.04.2008 Page No. 13