Calcutta High Court (Appellete Side)
A.N. Pandey vs Gopal Das & Anr on 4 February, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
CRA 250 of 1988
A.N. Pandey
-Vs-
Gopal Das & Anr.
For the Appellant : Shri Krishna Das Poddar
For the Respondent : Shri Sudipta Moitra
Heard on : 06.01.2015 & 13.01.2015
Judgement on : 04 .02.2015
Subrata Talukdar, J.: In this appeal the judgment and order of acquittal passed by the Ld. Judicial Magistrate, Howrah in R.P.F. Case No.113/82 T.R. 202/82 dated 30th November,1987 is under challenge. By the impugned judgment and order of acquittal dated 30th November, 1987 the Ld. Trial Court was pleased to acquit the present respondent-accused of the charge under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to for short as the RPUP Act). The Ld. Magistrate was pleased to hold the view that although the fact of recovery of AC bearing plates and permanent way materials stood established from the godowns of the accused persons it could not be proved from the deposition of the expert that the property recovered were railway properties. It cannot also be proved by adducing expert evidence that the accused had acquired the properties by way of theft and, therefore, were in unlawful possession thereof.
The Ld. Magistrate further held the view that although the expert prosecution witness that is, the Permanent Way Inspector, one R.K. Ganguli failed to give evidence that the properties allegedly stolen or fraudulently obtained were railway properties, his deposition was ultimately expunged due to his non-production for cross examination under Section 246 Crpc. The Ld. Magistrate, concluded that in view of expunging of the deposition of the said R.K. Ganguli, P.W. 5 these is no evidence on record to prove that the articles recovered were railway materials.
Hence, the case of the prosecution was considered to have failed and the accused persons found not guilty of the charge. The seized properties stood confiscated with the State. The accused were acquitted under Section 248 Crpc.
Assailing the impugned judgement of the Ld. Magistrate Sri Krishna Das Poddar, Ld. Counsel appearing for the appellant takes this Court to the provisions of Section 3 of RPUP Act. Section 3 of the RPUP Act reads as follows:-
[Penalty for theft, dishonest misappropriation or unlawful possession of railway property].- [Whoever commits theft, or dishonestly misappropriates or is found, or is proved] to have been, in possession of any railway property reasonably suspected of having been stolen or unlawful obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable-
a) for the first offence, with imprisonment for term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgement of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees;
b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgement of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees.
[Explanation.-For the purposes of this section, "theft" and "dishonest misappropriation" shall have the same meanings as assigned to them respectively in Section 378 and section 403 of the Indian Penal Code (45 of 1860).] Sri Poddar submits that in the facts of this case as many as 7 witnesses were tendered on behalf of the prosecution. Out of the 7 witnesses both P.Ws. 6 and 7 are independent witnesses. Taking this Court through the deposition of P.Ws. 6 and 7 Sri Poddar points out that both the P.Ws. have corroborated that such seizure took place on the appointed date, that is 17th March, 1982 at the godown of the accused persons.
According to Ld. Counsel, P.W. 6 has deposed that on the said appointed date the shop of the accused persons was surrounded by the police and R.P.F. officials. The accused, Gopal Das who is also the owner of the shop fled from the spot. The search of the shop and the godown of the accused persons yielded one bearing plate (marked Exhibit 1) and keys (marked Exhibit 2). A seizure list was prepared. P.W. 6 further attested to the fact that the local Councillor, one Gopal Chandra Chatterjee along with other 4 persons were present at the time of search.
Further taking this Court to the evidence of P.W. 7, Gopal Chandra Chatterjee, who was also at the material point of time Mayor in Council, Howrah Municipal Corporation, Sri Poddar points out that P.W. 7 has stated that he was present at the time of search in the godown of the accused persons. Five iron plates and some keys were recovered from the godown.
Sri Poddar has argued that the Ld. Magistrate has discussed the evidence of P.Ws. 6 and 7 and held that search and seizure of railway material from the shop and godown of the accused persons stood corroborated and did not stand contradicted in cross examination. Finding no ground to disbelieve such evidence given by the independent witnesses, that is P.Ws. 6 and 7 of the case made out by the prosecution as well as the evidence adduced by the other prosecution witnesses, the Ld. Magistrate, inter alia, held as follows :-
"The P.W. 4 told in his examination in chief that 5 A. C.B. Bearing plates and 7 permanent way materials of the Railway were recovered therefrom. This evidence was contradicted in his cross examination but nothing to the contrary came up in his cross examination. The local gentlemen P.W. 6 Gour Mohon and the Municipal Councillor Gopal Chandra Chatterjee in their examinations in chief corroborated the aforesaid testimony of the P.W. 4 and nothing to the contrary came up in their cross-examination. The seizure list Ext. 1 also corroborates this evidence. I find nothing to raise doubt about truthfulness of these evidence. Therefore the fact of recovery of the A.C Bearing plates and permanent way materials were recovered from the godowns of the accused persons.
When I found that the accused persons possessed the godowns and that the properties recovered from these godowns, I must find that the accused persons had been in possession of these properties."
It is the further argument of Sri Poddar that the fact that the property searched and seized on the suspicion of being stolen stood corroborated in evidence and, had been held to be so by the Ld. Magistrate. Sri Poddar, therefore, further argues that the Ld. Magistrate ought to have applied his mind to the true intent and purport of Section 3 of the RPUP Act which lays down the onus on the accused persons of proving that such railway property came into their possession lawfully. In the event such onus is not discharged consequences prescribed for punishment under Section 3 of the RPUP Act shall follow.
Ld. Counsel for the appellant further submits that the search and seizure of the shop and godown of the accused persons on the reasonable suspicion of such properties being railway properties had yielded A.C. bearing plates and permanent way materials which were uncontrovertedly railway properties. Even the Ld. Magistrate believed that such railway properties were recovered from the godown and shop of the accused persons. There could be no iota of doubt that the nature of the properties searched and seized were such as used by the railways alone.
In view of the nature of the railway property the Ld. Magistrate ought not to have held that further onus lay on the prosecution to prove that the properties recovered were railway properties. The Ld. Magistrate fell into error in placing overreliance on this aspect and erroneously found that expunging of the deposition of the expert, viz P.W. 5 was fatal to the case of the prosecution.
After holding that independent witnesses have corroborated the case of the prosecution with regard to the identity and nature of the properties, the Ld. Magistrate failed to exercise jurisdiction vested in him by law by holding that there is no evidence on record to show that the recovered articles were railway materials. Thus, according to Sri Poddar, the Ld. Magistrate wrongly upset his earlier findings culled from the reliable evidence of the other witnesses, including P.Ws. 6 and 7 and erred in holding that the accused stand to be acquitted under the RPUP Act.
It is the thrust of Sri Poddar's contention that on having expressed satisfaction that the properties were indeed railway materials and not any other materials, the Ld. Magistrate ought to have applied the provisions of Section 3 of the RPUP Act by placing the onus on the accused to prove that such railway property came into their possession lawfully, failing which punishment ought to have followed.
Ld. Counsel argues that the Ld. Magistrate, erroneously understood and applied Section 3 of RPUP Act which, inter alia, provides that once railway properties are searched and recovered on the reasonable suspicion of the same having been stolen or unlawfully obtained, the accused retains the onus of proving that he came into lawful possession of such railway property. Sri Poddar further points out that instead of discharging such onus by the accused persons, the Ld. Magistrate erroneously placed overreliance on the evidence of P.W. 5 the expert. According to Ld. counsel even the non-adducing of evidence by P.W. 5 cannot disclaim the fact that the properties searched and recovered were railway properties. He also submits that the surrounding documentary evidence shows that the trade licence of the godowns stand in the name of the accused persons. The Certificate of the Expert (Exhibit 7) and the Seizure list (Exhibit 1)also shows the property to be exclusively railway property. In support of his arguments Sri Poddar relies upon the decision of the Hon'ble Apex Court reported in 1979 volume 4 SCC page 23 in the matter of State of Maharashtra Vs. Vishwanath Tukaram Umale and Ors.
Per Contra Sri Sudipto Maitra, Ld. Senior counsel for the OP- accused submits that there could not be presumptive evidence of a nature that the property belongs to the railways unless proved to be so. According to Ld. Counsel, it must be proved at the trial by adducing expert evidence that the properties were indeed railway property. Only an expert can prove that the property was marked for exclusive use by the railways. Thereafter the question would arise as to the identity of the person from whose possession the property stood recovered. Only expert evidence can vouchsafe for the fact that the property was meant to be exclusively used by the railway.
Sri Maitra also draws the attention of this Court to the settled proposition of law for deciding an appeal against a judgment of acquittal. According to him, the first test is to see whether the impugned judgment suffers from any perversity. Requirement of applying the provisions of Section 3 of the RPUP Act will arise at the stage of adducing substantive evidence and, in the facts of the present case, admittedly expert evidence has not been adduced.
Further pointing to the several lacuna in the evidence, Sri Maitra submits that from the evidence of the P.W. 1 the recovery of articles has not been proved. There is no definitive evidence of the P.W. 2 regarding search and seizure. Neither Gour Mohon nor Mahadeo Singh the two signatories to the seizure list, were examined. The evidence of P.W. 7 is vague on the aspects of search and recovery. On the basis of the alleged loopholes in the evidence as listed above, Sri Maitra argues that simply because a complaint has been filed it could not be inferred that the properties were railway properties. According to the Ld. counsel the ingredients of Section 3 of the RPUP Act do not stand satisfied in the facts of the present case.
In support of his above argument Sri Maitra relies upon the following decisions.
2014 volume (8) Supreme page 1 in the matter of Krisna alies Krisnappa Vs. State of Karnataka.
1987 Criminal Law Journel page 1390 in the matter of B. Mohan.
2012 volume 5 SCC page 789 in the matter of State of Rajasthan Vs. Darshan Singh alias Darshan lal.
Having heard the respective counsel and giving considering the materials on record this Court is of the view that once the Ld. Magistrate was satisfied that the properties being A.C. bearing plates and permanent way materials which are exclusively earmarked for use by the railways stood recovered from the shop and godown of the accused persons, it was incumbent upon the Ld. Magistrate to apply the onus of proof of lawful possession of such property on the accused persons in terms of Section 3 of the RPUP Act.
To the mind of this Court it does not appear anywhere in the evidence that the properties were of a nature which were not exclusively earmarked for use by the railways. From the evidence of P.Ws. 6 and 7 the fact of search and seizure as well as the nature of the property stood established. The said independent witnesses namely, P.Ws. 6 and 7 corroborated the prosecution charge in all essential aspects. At paragraphs 8 and 9 of the impugned judgement (supra) the Ld. Magistrate has recorded his satisfaction with regard to such corroborative evidence. The Ld. Magistrate also recorded his satisfaction that the accused persons were in possession of such properties. Furthermore the accused persons fled from the scene of search and seizure there by pointing the needle of suspicion towards their complicity in the offence.
In the light of the above, in the considered opinion of the Court, it was incumbent upon the Ld. Magistrate to apply section 3 of the RPUP Act and require that the accused persons prove that such railway property came into their possession lawfully and, in the absence of such proof consequential orders ought to have followed.
The Ld. Magistrate failed to appreciate the true scope and intent of Section 3 of the RPUP Act that the onus of reasonable suspicion of the railway property having been stolen and unlawfully obtained having stood satisfied at the conclusion of the search and seizure from the godown of the accused persons, the onus now shifted upon the accused to prove such possession to be lawful. In the further view of this Court the Ld. Magistrate erred in holding that the non-production of the expert witness for cross examination was serious enough to disprove the nature of the property as railway property since, in the impugned judgement itself from the other evidence on record the Ld. Magistrate had expressed his satisfaction that the properties were railway properties and recovered from the possession of the accused persons.
For the above reasons this Court is not persuaded enough to accept the submissions of Sri Maitra that the presumption which arose at the time of filing of the complaint ought to have been proved by adducing expert evidence. In the opinion of this Court the basis of the presumption arose in the complaint and continued with the search and seizure as well as in the charge of the prosecution read with the corroborative evidence of independent witnesses. Such presumption not being shaken at any stage during cross examination and satisfaction of it having been expressed by the Ld. Magistrate in his judgment, the second part of Section 3 of the RPUP Act ought to have been applied calling upon the accused persons to prove their lawful possession of such railway property.
Admittedly, nowhere from the materials on record does it appear that such onus of proof was discharged by the accused persons. Neither does it appear from the examination under Section 313 CrPC which could be considered to be relevant for corroborating the stand of the defence that such onus was discharged at any point of time. On the contrary, the accused admittedly fled from the scene at the time of search and seizure.
In State of Rajasthan vs. Sohan Lal and Others reported in (2004) 5 SCC 573 the Hon'ble Apex Court held as follows:-
"3) This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal."
In Raj Narain Singh vs. State of Uttar Pradesh and Ors. reported in (2009) 10 SCC 362 the Hon'ble Apex Court held as follows:-
"31) The learned counsel appearing for the accused has strenuously argued and drawn our attention to the fact that the prosecution has not examined the other witnesses available on the spot.
However, we are unable to accept the said contention as it is not necessary that all those persons who were present at the spot must be examined by the prosecution in order to prove the guilt of the accused. Section 134 of the Evidence Act, 1872 provides that no particular number of witnesses is required for proof of any fact. It is trite law that it is not the number of witnesses but it is the quality of evidence (emphasis supplied) which is required to be taken note of by the courts for ascertaining the truth of the allegations made against the accused."
In State of UP vs. Dr. Ravindra Prakash Mittal reported in (1992) 3 SCC 300 the Hon'ble Apex Court was pleased to consider the issue of the need to interfere in an appeal qua the delay in disposal of the appeal as follows:-
"42) Moreover, when a judgement appealed against suffers from illegality or manifest error or perversity, warranting an interference at the hands of an appellate court in the interest of justice on substantial and compelling reasons, the mere delay in the disposal of the said appeal will never serve as a ground for non-interference and on the other hand, the appellate court if duty bound to set at naught the miscarriage of justice."
For the above reasons the impugned judgment and order of acquittal dated 30th November 1987 passed by the Ld. First Judicial Magistrate, Howrah (Sadar) in R.P.F. S.L. 116 TR 202/82 acquitting to accuse under Section 246 CrPC is set aside. The accused are found guilty under Section 3 (a )of the RPUP Act. They are directed to surrender within one month from this date to undergo the sentence prescribed under the Act i.e. to suffer the sentence of imprisonment of one year and a fine of Rs.2000/- each in default, to suffer simple imprisonment of further one month treating the offence to be a first offence.
Registry is directed to communicate this order to the Ld. First Judicial Magistrate, Howrah (Sadar) forthwith for executing the sentence.
CRA 250 of 1988 is accordingly allowed.
There will, however, no order as to costs.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.)