Delhi District Court
State/Rpf vs Raman on 12 October, 2012
IN THE COURT OF SH. LOVLEEN,
METROPOLITAN MAGISTRATE 03 (CENTRAL), DELHI
CC No. 113/II/12 [Crime Case No. 12/12, PS. RPF/NDLS]
Unique Case ID No. 02401R0264672012
Date of Institution: 30.05.2012
Date of reserving judgment: 12.10.2012
Date of pronouncement: 12.10.2012
In re:
State/RPF versus Raman
S/o Sh. Jai Shri Ram
R/o Vagabond footpath, Ajmeri Gate, Delhi.
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 the accused Raman was found in possession of railway property which was reasonably suspected of having been stolen or unlawfully obtained. The property in this case consists of two brake blocks worth Rs. 1200/ (approximately).
2. Briefly stated, the case of the prosecution is, that on 29.04.2012 while the RPF officials including ASI Ram Niwas and ASI Rajroop were on patrolling duty at NDLS Station, at about 4.10 hrs, when they reached in front of PWI Office gate, they saw one person while carrying one plastic bag. The identity of the accused was disclosed as Raman. The material being carried by him was checked. Accused was found in C.C. No. 12/12 1of 11 possession of two brake blocks. The accused failed to produce any authority for keeping and carrying the railway property with him and disclosed that he had committed theft of the same. Accordingly, the accused was arrested in this case and the property was seized. Present crime case was registered and inquiry was conducted. After completion of the inquiry, complaint was filed in the court.
3. Since the present complaint was filed by the public servant in writing, recording of presummoning evidence was dispensed with. Precharge evidence was lead wherein the complainant examined PW1 P.S. Verma, PW2 ASI Ram Niwas and PW3 ASI Rajroop.
4. On the basis of precharge evidence so lead, charge for the offence under section 3 of the Act was framed against the accused vide order dated 27.06.2012, to which he pleaded not guilty and claimed trial.
5. At the trial, in terms of Section 246 CrPC, the witnesses already examined in precharge evidence were recalled for crossexamination in postcharge evidence.
6. PW2 and PW3 were a part of the RPF team who had apprehended the accused. Both these witnesses deposed about the apprehension of the accused while the possession of the railway property that was seized and accused was arrested vide memo Ex. PW2/A. Disclosure statement and pointing out memo which are Ex. PW2/B and PW2/C respectively were prepared. Confessional statement Ex. PW2/D was recorded Site plan Ex. PW2/E was prepared. Case was registered vide DD no. 3 dated 29.04.2012 which is Ex. PW2/F.
7. PW1 was the SSE who proved the theft memo Ex. PW1/A and proved the verification report Ex. PW1/B prepared by him after examining the case property during the enquiry conducted before the filing of present complaint.
C.C. No. 12/12 2of 11 8. PW4 made further inquiry in this case. He got verified the case property
through the railway expert and recorded the statements of witnesses. After completion of inquiry, he filed the complaint Ex. PW4/A in the court.
9. Statement of the accused under section 313 CrPC was recorded on 17.08.2012, wherein he denied all the allegations and pleaded innocence. He took defence that no property was recovered and he was falsely implicated in this case. However, he chose not to lead any evidence in defence.
10. It is in these circumstances that the Ld. PP for RPF has argued that the prosecution/complainant has been able to prove its case beyond reasonable doubt against the accused. He has primarily submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.
11. On the other hand, the Ld. Legal Aid Counsel for the accused has submitted that the entire prosecution case is false. It is argued that the entire case is based only on the testimony of police officials who are interested witnesses and despite availability of the public persons, none of them were joined in the proceedings at any stage.
12. I have heard the arguments advanced by the Ld. PP for RPF as well as the Ld. Defence Counsel and have meticulously perused the material available on record.
13. The present case has been filed under Section 3 of the Act which reads as follows:
"Whoever is found or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable C.C. No. 12/12 3of 11
(a) for the first offence with imprisonment for a 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 judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees..."
14. 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.
15. At this stage, before analyzing the evidence adduced on record by the prosecution, it would be appropriate to discuss certain mandatory provisions/rules regarding the records to be maintained by the RPF in respect of theft of any railway property. The first and the foremost are the Railway Protection Force Regulations, 1966 (in short RPF Regulations) issued under Rule 32 of Railway Protection Force Rules, 1987. In Chapter XXVII "Records and Registers" of RPF Regulations it is prescribed at Serial No. 7 (5) that a Deficiency Message Register (RPF/C1) shall be maintained at each RPF Post for messages received in connection with theft of booked consignment/other railway properties. A similar provision has been incorporated in Railway Protection Force Rules, 1987 (in short RPF Rules) under Chapter XIV C.C. No. 12/12 4of 11 "Investigation and Prosecution" prescribing, under Rule 222.1, that all the crimes effecting Railway Property have to be entered either in the localized crime register or the unlocalized crime register. (Localized Crimes are those where the actual place of offence is prima facie apparent from the inspection of the scene and Unlocalized crimes are those where actual place of crime cannot be immediately known or ascertained). A collective reading of these rules categorically imply that the RPF is under an obligation to make the necessary entries in its records/registers regarding any intimation about the theft of any Railway Property. In the present case, the RPF has failed to comply with the said mandatory procedural safeguards despite having received a theft memo by the concerned railway officials in respect of the theft of the case property. The above non compliance has not been explained at any stage during the trial on behalf of the prosecution and which is sufficient, in the considered opinion of this court, to doubt the genuineness of the present case. The above noncompliance further raises a concern that the theft memo could have been got prepared after the apprehension of the accused by RPF. Once, such a doubt is entertained by this court then the reliability of the entire prosecution case suffers.
16. Secondly, it is further provided under the Chapter XXVII of RPF Regulations at Serial NO. 7 (64) that a daily diary/Roznamacha (RPF/G2) regarding the matters pertaining to departure and return of staff is to be maintained, in duplicate, at all the posts of RPF. However, in the present case, no such daily diary entries regarding the departure of the RPF Officials who allegedly apprehended the accused alongwith the case property have been placed on record without any explanation on behalf of RPF. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal Vs State, 1987 (2) Crimes 29 wherein it has been observed (in a similar context) by the C.C. No. 12/12 5of 11 Hon'ble Delhi High Court that: "if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive".
This failure to bring on record the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
17. Thirdly, even the DD Entry recorded at the first instance by RPF, after the alleged apprehension of the accused alongwith the case property, has been exhibited in the statement of the recovery witness. It is surprising that the RPF has not produced the original DD Register before this court at the time of exhibiting the said document. It is not disputed that the DD Entry Register is to be maintained regularly. If that were so, then the prosecution miserably fails to explain as to what prevented it from producing the original DD Register at the time of recording of deposition of said recovery witness. Admittedly, the DD Entry exhibited on record is not the original nor a carbon copy of the original DD Entry. The prosecution has failed to produce the primary evidence and has neither sought an opportunity to prove the said DD Entry by means of secondary evidence. Accordingly, the said DD entry, although exhibited in the statement of the recovery witness, could not be held to have been proved as per law and consequently could not be relied upon by this court.
18. At this juncture, it must be observed by this court that the aforementioned violations of the procedural mandates by the RPF could not be brushed aside lightly in view of the wide powers granted to the RPF in respect of the arrest and subsequent C.C. No. 12/12 6of 11 inquiry u/s 8 of the RP(UP)Act 1966. It has been fairly admitted by the Ld. PP for RPF that the RPF is not under an obligation to report the registration of any case to the Illaqa Magistrate as is the State police u/s 157 of Cr.P.C. (Code of Criminal Procedure, 1973) The above fact increases the anxiety of this court manifold in view of the unrestricted and unchannelized powers of arrest granted to the RPF. This court can take judicial notice of the fact that all the railway property is lying strewn across the entire length and breadth of this country mostly in an unguarded manner. The kind of intimation regarding theft of a railway property to the RPF is available on record in the form of a theft memo which theft memo has been prepared in the most brief and vague manner as there is no material to depict the total inventory of the kind of property which was alleged to have been stolen vide the above mentioned theft memo. There is nothing on record to suggest as to who was handed over/entrusted the case property prior to its theft. The dubious manner in which the theft of case property has been reported and the consequent inaction of RPF in preparing the necessary records, coupled with the unparalleled powers invested in RPF for the arrest and seizure forces this court to scrutinize the evidence with utmost cautiousness. The reason being that unclaimed railway property lying in the railway premises could be planted upon any person by the RPF with impunity as the person apprehended would not even have the basic protection of a formal FIR, copy of which FIR is provided to an accused at the earliest instance in any other State case. Infact the accused apprehended by RPF remains in custody without being informed of the accusation against him formally by means of an FIR as is done in the regular State cases. Although this court must clarify that it is not presuming that the RPF officials would indulge in such mischief deliberately but the fact that the RPF failed to comply with the provisions as C.C. No. 12/12 7of 11 mentioned in para 15 of this judgment and the reluctance of the RPF in producing the original DD entry registers (pertaining to registration of this case) during trial compounds the apprehensions of this court.
19. The case of the prosecution has many other weaknesses apart from the above mentioned technical shortcomings. The most important is the fact that the RPF failed to associate any public person at any stage of enquiry before the filing of present complaint. It is not disputed that the place of alleged arrest of the accused is a place frequented by public persons or railway officials. Either the passengers or the vendors, or the collies are always present in the railway premises. This court can take note of the fact that running of railways is a 24 hours task. It could not be imagined that the presence of at least an independent railway official could not be ensured by the RPF. None of the recovery witnesses have stated even a word as to if any independent person was even asked to join the proceedings of the alleged recovery from the accused. This further makes the recovery doubtful in view of the observations made by the Hon'ble Supreme Court in Ritesh Chakarvarti Vs State of Madhya Pradesh, (SC)2007 (1) SSC (Crl.) 744, wherein it has been observed that:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken".
20. Lastly, the only material that is left on record against the accused is his confessional statement allegedly recorded by the RPF Officials. No doubt the C.C. No. 12/12 8of 11 confessional statement recorded by RPF officials is admissible in evidence as observed by the Hon'ble Apex Court in Bal Kishan A. Devi Dayal vs. State of Maharashtra, AIR 1981 SC 379. However, the observations made by the Hon'ble Court in Bal Kishan's case do not, in the considered opinion of the court, preclude this court from assessing the attending circumstances to ensure that the confessional statement was voluntary in nature or not. It is not disputed that the accused was apprehended after a brief chase by the RPF Officials who are presumed, at this stage, to have been uniformed and probably armed at the relevant time. This court fails to understand as to how a person allegedly apprehended by uniformed and armed RPF Officials (whose uniform is identical to the one worn by local/State police) could be free from any mental pressure or be even headed at the time of making the alleged confessional statement or could confide in the RPF officials who were admittedly unknown to him. Moreover, the witnesses who proved the alleged confessional statement are the persons who allegedly apprehended the accused and none of the said witnesses have reproduced the exact words stated by the accused at the relevant time which further brings their testimony under a cloud of doubt as per the observations made by Hon'ble Apex Court in C.K. Raveendran, Appellant v. State of Kerala, Respondent, AIR 2000 Supreme Court 369 wherein it has been laid down that the witness of an extra judicial confession has to state the exact words used by the accused at the relevant time.
21. 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 explanation as discussed in the preceeding paragraphs. It is a settled legal preposition C.C. No. 12/12 9of 11 in case of doubt, benefit shall be given to the accused. 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".
In case titled Sohan and another Vs State of Haryana and another (2011)3 SCC 620 it has been observed by Hon'ble Supreme Court that:
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. It this case, if only the Sessions Judge had remained himself of the above mentioned basis or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided".
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 doubtwhere there is a reasonable doubt and when two incredible versions confront the court, the court should give benefit of the C.C. No. 12/12 10of 11 doubt to the accused and it is not safe to sustain conviction".
The accused Raman deserves benefit of doubt and is accordingly acquitted of all charges.
Announced in the open court
this 12th day of October, 2012
LOVLEEN
MM03 (Central), Delhi
C.C. No. 12/12 11of 11