Karnataka High Court
Union Of India vs Sri S V Ravikumar on 6 March, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF MARCH, 2020
BEFORE:
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.175 OF 2011
BETWEEN:
Union of India by
Sub-Inspector/RPF,
Bangalore City. ... Appellant
(By Sri. K. Nageshwarappa, HCGP)
AND:
Sri. S.V. Ravikumar
S/o late S. Venkatachalapathy,
28 years,
No.4, 1st Phase, 1st Cross,
15th Main, Girinagar,
Bangalore. ... Respondent
(By Sri. Mohammed Zulfikhar Ahmed, Advocate)
This Criminal Appeal is filed U/S 378(1) & (3) of
Cr.P.C., praying to grant leave to file an appeal against the
Judgment dated 06.01.2010 passed by the P.O., SPl. Court
for Economic offences, Bangalore in C.C.No.464/02
acquitting the respondent for the offence P/U/S 3(a) of the
RP(UP) Act 1966.
This criminal appeal coming for Hearing on this day,
the Court delivered the following:
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JUDGMENT
This appeal is preferred by the State against the Judgment and order of acquittal passed by the Special Court for Economic Offence`s at Bengaluru, acquitting the accused-respondent for the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act 1966 (herein referred to as 'RP(UP) Act').
2. I have heard the learned HCGP for the appellant-State and perused the material on record.
3. The charge against the accused is that on 15.05.2002, when the complainant (PW1) and his staff were on confidential watch at B.Gate, near Malleshwaram 2nd Entry of SBC, Railway Station by the side of Electrical Pole, New booking office, Bengaluru, the accused was found in possession of 2 numbers of carton boxes containing Asian Mixer Grinders and each bearing railway marks as "CSTM-766414-P-5" valued at Rs.2,600/- which was reasonably suspected of having been stolen or unlawfully obtained and thereby committed an offence punishable under Section 3(a) of RP(UP) Act 1966. 3
4. The complaint was filed by PW1, SI/RPF/SBC, under Section 190(i) read with Section 200 of Cr.P.C. The gist of the complaint is that on 15.05.2002, at about 11.00 a.m. where he was on a confidential watch along with his staff at B.Gate near Malleshwaram 2nd Entry of SBC Railway Station, they noticed a person moving in a suspicious manner carrying 2 numbers of carton boxes. He was detained and questioned, he revealed his name and address. He informed that he was working as apprentice fitter under C & W/SBC, S. Railways. He could not give satisfactory reply when questioned about the carton boxes. Hence, in the presence of two independent witnesses, the said boxes were checked. Each box was found with printed marks as "Asian Mixer Grinder" and other marks as mentioned in the mahazar. The accused admitted for having pilferaged the said two boxes which were kept at platform No.4. He did not produce any bills or voucher for his unlawful possession. Hence, the boxes were seized under a mahazar in the presence of panch witnesses. The observation mahazar was drawn from where the accused removed the said properties as pointed out by him, 4 wherein parcel bundles were found lying on platform No.4. Out of them four parcel carton boxes were found in a good condition. One carton box having railway marks as CSTM- 766414-P5 was found in a torn and open condition. The carton boxes were seized under the cover of observation mahazar. The confessional statement of the accused was recorded in the presence of witnesses. After due enquiry a case in SBC post in Crime No.11/2002 under Section 3(a) of RP(UP) Act was registered.
5. It is the case of prosecution that the accused was in unlawful possession of railway property reasonably suspected of having stolen or unlawfully obtained from the railways. Hence, he committed an offence punishable under Section 3(a) RP(UP) Act.
6. In order to establish its case, the prosecution got examined PW1 to PW15 and got marked Exs.P1 to P.23 and MO.1 and MO.2.
7. The trial Court after considering the oral and documentary evidence on record, acquitted the accused 5 aggrieved by which, the present appeal is preferred by the State.
8. Learned HCGP would contend that the prosecution has placed sufficient material both oral and documentary which proves the guilt of the accused. The trial Court has not given due weightage to the material on record and erroneously acquitted the accused. He submits that the evidence led by the prosecution has overwhelmingly established that the accused was in unlawful possession of the railway property and he has failed to give satisfactory answer, which shows that the property in question belonging to the railways was stolen by him. He contends that the prosecution has placed sufficient material to connect the guilt of the accused. The evidence of the prosecution witnesses could not have been brushed aside lightly. The witnesses have clearly spoken regarding the seizure of the property from the possession of the accused. All the witnesses except PW2 have supported the case of prosecution. The evaluation of the evidence by the learned Magistrate is not proper and not in 6 the right perspective. Hence, he submits that the Judgment and order of acquittal passed by the trial Court warrants interference. Accordingly, he seeks to allow the appeal.
9. PW1 is the complainant. He has reiterated the averments made in the complaint. He has stated that on 15.05.2002 at about 11.00 a.m. while he was on confidential watch along with his staff at Malleshwaram 2nd Entry of Bengaluru City Railway Station near the booking office, he noticed the accused carrying two cardboard boxes, in his hands and moving in a suspicious manner. He was detained and enquired about his name and address. He could not give proper answer. He summoned two independent witnesses and in their presence he checked the contents of cardboard boxes. Each cardboard box was containing Mixie and its 11 parts etc. The accused admitted that he has stolen them from platform No.4. He could not produce bills or receipts. The accused showed the place from where he committed theft. Since the accused did not give satisfactory reply for 7 possessing the railway property, he seized them under mahazar-Ex.P1 in the presence of two panch witnesses. The observation mahazar was also drawn as per Ex.P2 on platform No.4 as shown by the accused. There were 5 parcels pertaining to P.W.B. No.766414, out of which 4 parcels were intact and one was in a torn condition.
10. PW1 has further stated that the accused told him, he removed 2 boxes from that parcel. He recorded the voluntary statement of the accused as per Ex.P.3. He conducted further enquiry and recorded the statement of other witnesses. On 17.05.2002, Chief Commercial Inspector took inventory of the seized property and issued certificate as per Ex.P8. He collected true copies of the parcel weigh bill, gate pass, receiving summary and unloading summary as per Exs.P20 to Ex.P23. He has stated that his enquiry revealed that the property belongs to the railways and the accused was in unlawful possession of the same. Hence, he filed the complaint. He has stated that the box produced before the Court is one of the boxes which the accused was in possession at the time 8 of his arrest consisting of 11 parts, marked as MO.1. Big cardboard box in which there were 6 boxes like MO.1, marked as MO.2.
11. PW2 is an independent panch witness to Ex.P1- seizure mahazar. He has turned hostile and not supported the case of the prosecution, PW3 is another panch witness to Ex.P1 who was working as Constable/RPF/SBC, Bengaluru.
12. PW4 was working as Chief Commercial Clerk (In-Wards) Parcel Officer, SBC, Bengaluru, he has stated that on 21.05.2002, he was on gate pass duty. One K. Puttaraju, Consignee came to receive the consignment in respect of P.W.B No.766414. He checked the delivery book entries and found that out of the 5 parcels only 4 were available. Accordingly, he gave the gate pass. Ex.P21 is the true copy of the gate pass.
13. PW5 was working as a Head Commercial Clerk, Parcel Office, SBC, Bengaluru, he has stated that on 21.05.2002 one K. Puttaraju - Consignee produced the 9 gate pass as per the original of Ex.P.21. He checked the parcels and delivered 4 parcels against 5 as one parcel was short.
14. PW6 was working as a Senior Commercial Clerk, In-ward Parcel Office, SBC, Bengaluru. He has stated that on 17.05.2002, he received 4 carton boxes against 5. He noted this fact in the receiving summary register. The extract of the same was marked as Ex.P22.
15. PW7 was working as Head Commercial Clerk, T.P. Office, SBC, Bengaluru. He has stated on 15.05.2002 he unloaded 111 parcels in respect of P.W.B. No.766414. He unloaded 5 carton boxes which were intact. He noted the said fact in unloading register. The extract of unloading register was marked as Ex.P.23.
16. PW8 was working as a Parcel Supervisor, Parcel In-Ward Section, SBC. He has stated that he has issued Ex.P.20 and Ex.P.21 which were the extracts of the P.W.B No.766414 and G.P. No.009671.
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17. PW9 was working as a Head Commercial Clerk, Parcel In-Ward Section, SBC. He has stated that he has issued Ex.P.22 at the request of RPF.
18. PW10 was working as Chief Commercial Inspector, SBC, Bengaluru. He has stated that on 27.05.2002 he was summoned by IPF/ SBC to the parcel inwards office for the purpose of making inventory of parcels. A torn ie., tampered parcel was produced before him. The cardboard box was having 4 cardboard boxes and there was space for another two small cardboard boxes. Two small cardboard boxes were also produced and they were found matching the space available in the big cardboard box. Then he prepared parcel inventory report as per Ex.P8.
19. PW11 was working as Senior Commercial clerk, SBC, Bengaluru. He has stated that on 15.05.2002 around 11.45 a.m he saw the RPF police and accused with the two cardboard boxes. He was told that the accused was carrying the two cardboard boxes and therefore he has 11 been detained. He has stated that he signed Ex.P2 mahazar.
20. PW12 was working as parcel clearing agent, SBC, Bengaluru. He has stated that he received 4 parcels instead of 5 containing mixies and handed it over to one Sri. Dashrath owner of Apollo Agency.
21. PW13 was working as parcel supervisor, Southern Railway, SBC, Bengaluru. He has stated that at the request of RPF, he gave the extract of unloading summary as per Ex.P23.
22. PW14 has stated that he was Senior Section Engineer, C & W, SBC, Bengaluru and at the request of RPF, he gave muster roll extract in respect of accused Ravi Kumar as per Ex.P15.
23. PW15 is one Dasharath, he has stated that in the month of May 2002 he had booked a parcel of 5 carton containing Mixer grinder from Mumbai to SBC. Later on, he came to know regarding the missing of one carton. He received only 4 cartons.
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24. In the complaint, PW1 has stated that the accused pointed out the spot from where he removed the properties and there they noticed a load of parcels lying on plat form No.4, of which 4 carton boxes were having railway marks as CSTM-766414-P-5 Bengaluru, they were in good condition. One carton box having railway marks as CSTM-766414-P-5 was found in a opened condition. However, admittedly there are no railway marks on the carton box carried by the accused.
25. PW1 in his cross examination has admitted that there were no railway marks and number was also not mentioned on MO.1. In mahazar Ex.P1, they have not mentioned all the private marks available on the box. He has admitted in the cross examination that on seeing them, the accused did not try to run away, he has specifically admitted that there were no railway marks on the cardboard boxes carried by the accused. He has stated that the independent witnesses were coolies working on the plat form.
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26. PW2 one of the independent witness to the seizure mahazar - Ex.P1 has turned hostile and not supported the case of prosecution. The witnesses who have attested their signatures to the statement of accused, are not examined.
27. According to PW3, the accused was carrying cardboard boxes and both cardboard boxes were having railway marks in ink, which is contrary to the evidence given by PW1 who has admitted in the cross examination that there were no railway marks found on the cardboard boxes carried by the accused. It is born out from the records, from the evidence of PW7 that before loading the parcels, they will mark railway marks.
28. According to PW7, all the 5 cardboard boxes were having railway marks. He has stated in his cross examination that at the time of unloading RPF staff will be present and also prepare unloading summary. The unloading clerks also prepares unloading summary and RPF staff will sign the unloading summary as a witness. He has stated that in the present case the RPF staff has 14 not signed the unloading summary. In the cross examination of PW10, he has stated that unloading clerk by name Shivakumar was not present when parcel inventory report was prepared.
29. PW11, Senior Commissioner clerk, SBC, Bengaluru has stated that while he was returning from plat form No.2 to 5 he saw RPF police and accused Ravikumar with two cardboard boxes at plat form No.5. He has stated that they told him that the accused was carrying those cardboard boxes. Then he went to plat form No.4. He was shown a cardboard box in a torn condition containing 4 small cardboard boxes. However, he has stated that the mahazar was not drawn at plat form No.4. In the cross examination conducted by the public prosecutor, he has denied the suggestion that the accused revealed that he committed theft of two small cardboard boxes by pilferage. He has denied that accused took them to plat form No.4 and shown 5 parcels pertaining to the same number and out of which one parcel was pilferaged 15 and accused showed the same from which he pilferaged two small cardboard boxes.
30. PW12 in the cross examination has admitted that there is no authorization given to him by Apollo Agency to clear the parcel. PW13 has stated in the cross examination that he does not know for what purpose the unloading summary extract was taken. PW15 has admitted that the RPF police did not show MO.2-empty box in his office and did not show the marks by opening the box.
31. From the evidence led by the prosecution, it cannot be said that the prosecution has established its case beyond all reasonable doubt. There are serious lacunas in the prosecution case. The infirmity and irregularity pointed out supra leads to serious doubt in the case of the prosecution and the benefit of doubt has to be given to the accused.
32. In Ex.P1, it is mentioned that the accused was working as apprentice fitter with token No.150 at Bengaluru city railway station in C and W departments. 16 Hence he was authorized to move inside the city railway station and therefore his presence at the railway station also cannot be said to be unauthorized. The burden was cast upon the prosecution to prove that the accused was in unauthorised possession of stolen railway property. The prosecution has failed to establish its case beyond all reasonable doubt.
33. This is an appeal against the judgment and order of acquittal passed by the trial Court. The trial Court having appreciated the entire oral and documentary evidence on record and after giving reasons has acquitted the accused. There are no good reasons to interfere with the impugned Judgment. Accordingly the following, ORDER Appeal is dismissed.
Sd/-
JUDGE LL/ RV