Delhi District Court
State vs . Monu on 19 September, 2018
IN THE COURT OF SH. BABRU BHAN,
METROPOLITAN MAGISTRATE -07 (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE Vs. MONU
CASE No. 578872/2016
C.C. NO. 07/14
P.S. RPF/SSB
Date of Institution : 26.06.2014
Date of reserving judgment: 19.09.2018
Date of pronouncement: 19.09.2018
In re:
State/RPF Versus MONU
S/o- Sh. Lakhan Lal,
R/o- Jhuggi No. 86/87, near
Railway Line, Lawrence road,
Delhi.
Plea of accused : Pleaded not guilty and claimed trial
Final order : Accused is acquitted for the
offence U/s 3 RP (UP) Act.
JUDGMENT
1. This is a complaint case filed by the officials of Railway Protection Force (RPF) under section 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as 'the Act') wherein it is alleged that on 10.05.2014 at about 20.30 hours at KM No. 22/6-A, near Ganda Nala, Britania Fatak, within the jurisdiction of RPF Post SSB, RPF officials apprehended accused Monu and he was found in possession of 15 pendrol clips (railways property) valued about Rs. 750/-. Accused failed to produce any authority for possessing the same. He was booked U/s 3 RP(UP) Act. After inquiry, the present complaint U/s 3 RP (UP) Act has been filed.
2. On filing of the present complaint, prosecution led pre-charge evidence. On the basis of material produced, charge for the offence U/s 3 RP (UP) Act was framed against the accused on 17.09.2014 to which he pleaded not guilty and claim to be tried.
3. During prosecution evidence, SI Vinod PW3 stated that on 10.05.2014, he alongwith Ct Anil Kumar were on patrolling duty vide DD No. 47 Ex. PW3/A. Later on Ct Rakesh Kumar also joined them in patrolling. When they reached near Ganda Nala, near KM No. 22/6-A, they saw accused carrying one plastic bag containing some property on his shoulder. Accused was apprehended and on search of plastic bag, 15 pendrol clips were recovered. Accused failed to produced any authority for keeping and possessing railways property with him. Case property was seized and accused was arrested and personally searched vide Ex. PW3/B at 20.30 hours. Accused also made disclosure statement Ex. PW3/C. Pointing out memo Ex. PW3/D was also prepared. Site plan Ex. PW3/F was prepared at his instance. Case was registered vide DD Ex. PW3/E.
4. HC Anil Kumar PW5 and Ct Rakesh Kumar PW6 also gave their testimonies on the same lines as given by SI Vinod PW3.
5. Gaurav Singh, Sr. Pway Supervisor PW1 stated that on 25.05.2014, on receipt of letter Ex. PW1/A, he verified the case property and issued verification report Ex. PW1/B.
6. Ramesh Kumar Rajput PW2 stated that on 10.05.2014, he found 15 pendrol clips missing and issued theft memo Ex. PW2/A.
7. SI Dharampal Singh PW4 carried out further investigation and recorded the confessional statement of accused Ex. PW4/A. He also got verified the case property vide report Ex. PW1/B and on conclusion of inquiry, he filed complaint Ex. PW4/B against the accused.
8. HC Amar Singh PW4 was the rojnamcha writer and recorded DD No. 66 Ex. PW3/E.
9. Retd. HC Mahender Singh PW9 is the MHC(M) and deposed the case property in malkhana at the instance of SI Vinod.
10. Retd. HC Mahender Singh PW9 stated that on 01.03.2013, he was working as MHC(M) and case property pertaining to this case was deposited in the malkhana vide Ex. PW9/A (OSR) at the instance of SI Vinod.
11. After completion of prosecution evidence, the statement of the accused was recorded under the mandate of Section 313 r/w 281 Cr.P.C wherein he tendered the explanation that he had been falsely implicated in this case and nothing as alleged was recovered from his possession. Further explained that when he was sitting outside his house situated near railway lines, at about 16.00 hours, RPF officials came an and took him to RPF Post. He has opted not lead defence evidence.
12. The Hon'ble Supreme Court has laid down the law in precedents titled as State of Maharashtra v. Vishwanath Tukaram Umale [AIR 1979 SC 1825] and also in Om Prakash v. State of UP [AIR 2008 SC 1112], that the following ingredients need to be established by the prosecution in such cases to establish the guilt of the accused:
(i) the property in question should be railway property,
(ii) it should reasonably be 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.
13. Gaurav Singh PW1 Senior Permanent Way Supervisor has given his report Ex. PW1/B that the property in question is exclusively used by railways to attach slippers with rail.
During cross-examination, PW1 stated that case property was in rusted condition. He further admitted the suggestion as correct that railway articles are not in use and are in unserviceable condition and auctioned by railways. Taking reference from the aforenoted part of cross-examination of PW1, Ld defence counsel has raised the contention that since the case property was not in serviceable condition and had already been auctioned by railways, therefore, same cannot be said to be railway property and accordingly accused deserves to be acquitted.
14. In his examination in chief recorded on 03.09.2014, Gaurav Singh PW1 has clearly and categorically stated that the articles which were got verified by the EO were pendrol clips. Same are exclusively used by the railways and were in serviceable condition. PW1 had given the same observation in his report Ex. PW1/B. Taking into consideration the statement of PW1 recorded at the time of his examination in chief and his report Ex. PW1/B, it appears that part of the statement relied upon by Ld defence counsel was result of some confusion. Even otherwise, once it is established that a property is railway property, the onus to prove the legality of possession shifts upon the person who is found in its possession.
15. In the present case, accused pleaded the defence that property was not in serviceable condition and same was auctioned by railways. The property does not loses its character of being railway property only because it is not in serviceable condition. Thus, to prove the legality of possession, the onus was upon the accused to prove that the property was auctioned property and he was having its legal possession but evidence in this regard has been produced. Thus, this argument is liable to be rejected. Considering the nature of the property, it has been proved that the property in question is railway property.
16. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
" It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we.....".
17. It was held by Hon'ble Delhi High Court in the CRL. L. P. 182 of 2013 in the matter of RPF VS. Raju that;
"........ it may not be possible for the RPF to associate public witnesses at the time of apprehension of the accused, given the hour of the day when such arrest takes place. Nevertheless, there must be contemporaneous entries made in the records maintained by the RPF to indicate that an attempt was made to associate public witnesses. In other words, the requirement of associating public witnesses must not be treated as a mere formality. It must not be presumed by the RPF in every case that the requirement can be dispensed with".
Moreover, it was further held that "Where there are no public witnesses involved, a trial Court is bound to view with suspicion the confessional statement made by an accused in the presence of the RPF officers.
In this case, SI Vinod PW1 attempted to wriggle out of the necessity of joining the public witnesses by saying that no public witness was seen present at the spot. As per the own version of prosecution, accused was arrested at 20.30 hours. Site plan Ex. PW3/F would should that spot of arrest was near Britania Fatak. Considering the time and place of arrest, the presence of public witnesses cannot be ruled out. With little efforts, EO could have easily found independent witnesses. However, no such efforts were apparently made by him. There is nothing in the statement of the RPF officials which may suggest that IO had made any efforts to join the public person in the investigation. This fact would effect the case of prosecution.
18. Retired HC Mahender Singh PW9 has deposed that he was working as MHC(M) on 10.05.2014. On that day, case property of the present case was deposited in malkhana at the instance of SI Vinod. PW9 also produced the copy of the relevant copy of malkahana register Ex. PW9/A. As deposed by SI Dharampal Singh PW4, the property was got verified from railway expert vide report Ex. PW1/B. Gaurav Singh PW1 stated that on 25.05.2014, on receipt of letter Ex. PW1/A, he verified the case property. It means that after depositing the property in malkhana on 10.05.2014, it was again taken out for verification on 25.05.2014. Needless to say, the entry regarding the taking out of property for its verification on 25.05.2014 should have been there in malkhana register. However, there is no such entry in document Ex. PW9/A. When rules prescribe that a particular register has to be maintained for particular purpose, entry should be made in that register entry. Non mentioning of the taking out and redepositing of the property in the malkhana register after its verification on 25.05.2014 would create a doubt whether that the same property which was seized from the accused has been produced before the Court or not.
19. Ld PP for RPF has argued that in the confessional statement Ex. PW4/A, accused has confessed the offence in question. While taking reference of the judgement passed by the Hon'ble Apex Court in case of Bal Krishan Devi Dayal Vs. State of M.P, 1981 SC., Ld PP for RPF has raised the contention that the accused can be convicted on the basis of the confessional statement.
20. True that the Hon'ble Supreme Court has held that a confessional statement given to RPF official is not hit by Section 25 of Indian Evidence Act. Still, the confessional statement given to the RPF official also have to qualify the test of voluntariness. The circumstances must show that the statement was given by the accused out of his free will, without any influence or coercion.
21. In the CRL. L. P. 182 of 2013 in the matter of RPF VS. Raju, the Hon'ble Delhi High Court held that;
"Where there are no public witnesses involved, a trial Court is bound to view with suspicion the confessional statement made by an accused in the presence of the RPF officers".
I may note that in this case, confessional statement was recorded by the RPF officials on the next day of his arrest. No public persons was involved despite availability. After such long detention in lockup, the fear of physical torture must be looming large in the mind of the accused. Thus, under the circumstances, the confessional statement has to be visited with suspicion and it would not be safe to base the conviction on the same.
22. Further, chances of prejudice could not be ruled out as the person (SI Vinod PW2) who made the recovery from the accused also arrested the accused and conducted the entire investigation.
It is pertinent to mention here that all the above documents were prepared by the said official in violation of procedure prescribed for inquiry under Appendix VIII (purporting to be Railway Board's order no. 73-See.Spl/Regn/Ch.XXV dated 09.07.1975) as annexed with a publication namely "Hasan Askari's Railway Property (Unlawful Possession) Act, 1966 together with Railway Protection Force Act and Rules Revised by Vijay Malik, LLB., M.B.A." published by Eastern Book Company, Lucknow, reprinted 2000, page 283, RPF Rule 7 of the said procedure prescribes the preparation of a recovery memo only by the apprehending officer. The rest of the enquiry as envisaged u/s 8 of the Act is to be conducted by the enquiry officer and not the officers who apprehended the accused red handed.
23. In this matter, almost entire inquiry has been carried out by SI Vinod PW3 who was also the member of the arresting party. A major part of documentation was carried out by the same RPF Official who allegedly arrested the accused red handed. This Court is of the considered opinion that chances of prejudice to the accused persons could not be ruled out in view of the fact that conduct of the RPF is in blatant violation of the prescribed procedures. On account of this reasons also, the recoveries allegedly made from the accused could not be believed by this court.
24. In view of the above mentioned observations, this Court is of the considered opinion that prosecution fails to prove the charges against the accused beyond any reasonable doubt as not only the recovery of the case property is clouded with doubts, even the procedural requirements have not been complied with by RPF without any justification as discussed in the preceding paragraphs. It is a settled legal preposition that in case of doubt, benefit shall be given to the accused.
25. In case titled Pratap Vs State AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that:
"The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded".
26. In case titled Surender Kumar & Anr Vs The State, 2007 (2) JCC 1003 it has been observed by Hon'ble High Court of Delhi that:
"Benefit of doubt-where there is a reasonable doubt and when two incredible versions confront the court, the court should give benefit of the doubt to the accused and it is not safe to sustain conviction".
27. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof is not preponderance of probabilities but proof beyond all reasonable doubts. It is well settled legal preposition that the benefit of doubt goes in favour of accused. Under the circumstances, it would not be safe to convict the accused merely on the basis of testimonies of the RPF officials. Hence, accused Monu is acquitted on the basis of benefit of doubt.
File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN
BABRU Digitally signed
by BABRU BHAN
COURT IN 19.09.2018 BHAN Date: 2018.09.24
17:00:40 +0530
(BABRU BHAN)
METROPOLITAN MAGISTRATE-07
TIS HAZARI COURT/DELHI