Delhi District Court
State vs . Madan @ Gogi & Anr. on 26 May, 2007
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Madan @ Gogi & Anr.
CC No. 12/97
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 383/03
b) Name of the complainant : SI/RPF B.K. Ram
c) The name & add. of accused : 1) Madan @ Jogi,
S/o. Banwari Lal,
R/o. 2103/2C, Gali No. 15,
Prem Nagar, New Delhi.
2) Vinod @ Chust,
S/o. Balbir Singh,
R/o. Flat No. 3, Shiv Vihar,
Nangloi, New Delhi.
d) Date of commission of
offence : 06.12.1997
e) Offence complained of : U/s 3 RP (UP) Act 1966
f) Plea of accused persons : Pleaded not guilty
g) Final Order : Convicted
h) Date of such order : 26.05.2007
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 06.12.1997 at about 18.5 hours in between Patel Nagar and 4 C Gate Line within the jurisdiction of RPF Post SSB both accused were apprehended by RPF staff and they were found in possession of 26 (12+14) pendrul clips as per seizure memo Ex. PW-3/A worth of Rs. 650/- belonging to Railway department Page No. 1 reasonably suspected of having been stolen or unlawfully obtained and thereby accused persons committed an offence punishable U/s. 3 of RP (UP) Act 1966.
2. After completion of enquiry complaint was put to the court for trial. The accused were summoned and copy of complaint was supplied to them.
3. Prosecution in all to prove its case cited as many as Six witnesses and examined all witnesses except PW HC Anang Pal who was given up by the prosecution. Before arriving at any conclusion let we analyse the testimony of the prosecution witnesses.
4. In pre-charge evidence prosecution examined PW-1 Insp. Harish Kumar, Civil Railway Board, Rail Bhawan, New Delhi who is an expert witness. He testified the examination of case property i.e. 12 and 14 PDC on 05.01.1998 conducted by him at RPF Post SSB and his report Ex. PW-1/A wherein he opined that the case property is a railway property.
5. PW-2 Shri Subhash Chand, AEN, Track Machine (NR) who testified the issuance of theft memo Ex. PW-2/A by him on 07.12.1997 in respect of 26 pendrul clips which were found missing from KM No. 19/36 to 20/2 Line 3-4, Daya Basti and Patel Nagar. PW-2 was cross examined by the Defence Counsel.
6. PW-3 IPF B.K. Ram is the Enquiry Officer of this case. He Page No. 2 testified that on 06.12.1997 he was posted as SI and on that day he was on track patrolling with HC Anang Pal Singh and SI B.D. Sharma. At about 18.35 hours they met with accused Madan @ Gogi and Vinod @ Chust out of which accused Vinod @ Chust ran away and left the gunny bag which was containing 14 pendrul clips and from accused Madan @ Gogi 12 pendrul clips were recovered and same were seized vide memo Ex. PW-3/A. He prepared personal search of accused Madan which is Ex. PW-3/B and recorded his disclosure statement which is Ex. PW-3/C. Pointing out memo is Ex. PW-3/D. On that day itself he registered a case against accused at RPF Post SSB. Accused voluntarily confessed his guilt vide memo Ex. PW-3/E. He prepared site plan Ex. PW-3/F. During enquiry he received theft memo and got the case property registered. After completion of enquiry he filed complaint against accused.
7. Thereafter pre-charge evidence was closed and from perusal of material produced on record and testimony of prosecution witnesses a prima facie case U/s. 3 RP (UP) Act was made out against the accused. Accordingly on 10.01.2005 charge U/s. 3 of RP (UP) Act 1966 was framed out against both the accused to which they pleaded not guilty and claimed trial and also desired to cross examine PW-1 and 3 in after-charge evidence.
8. In after-charge evidence PWs 1 to 3 came forward for Page No. 3 their cross examination and they were cross examined by the Defence Counsel.
9. Thereafter prosecution examined PW-4 ASI (Retd.) Manbir Singh testified that he received this case for further enquiry from SI B.K. Ram and during enquiry he got the case property. He recorded the statement of Shri B.D. Sharma. In his cross examination by Defence Counsel PW-4 refused to know when he got the verified conducted and on which date he received enquiry.
10. PW-5 Insp. B.D. Sharma is one of the witness of the spot and he testified the facts of the case and enquiry conducted by EO in his presence.
11. Thereafter PE was closed and on 13.09.2005 statement of both 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 they are innocent and have been falsely implicated in this case.
12. I have heard the submission of APP for RPF and accused in person and carefully gone through the material produced on record. APP for the RPF stated that prosecution has proved its case by examining all material witnesses as such accused is liable to be convicted in accordance with law. On the other hand accused have submitted that they are innocent and have been falsely implicated in Page No. 4 this case.
11. 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.
12. In order to prove the the above ingredient prosecution examined PW-1 Shri Harish Kumar who testified his report Ex PW-1/A in which he opined that the case property i.e. 26 pendrul clips are the railway property. There is no rebuttal to the testimony of PW-1, hence the it is proved that the case property is a railway property.
Another important witness is PW-3 IPF B.K. Ram who is Equiry Officer of this case. He testified the facts of the case as stated above. Though PW-3 was cross examined by the Defence Counsel but nothing material came out of it as such the testimony of PW-3 remained trustworthy and believable. Even otherwise other witnesses also corroborated the testimony of PW-1, hence the other ingredients of the Act are also proved by the prosecution.
13. In a case decided under Section 3 (2) of the Official Page No. 5 Secrets Act, 1923, the accused was found in conscious possession of a map. No explanation was offered by him for possession of the same. It was held that it must be presumed that the said map was obtained or collected by the appellant for a purpose prejudicial to the safety of interests of the State as observed in case titled as "State Alana Abdulla V. State of Gujarat", (1996) 1 SCC 427: 1966 SCC (Cri) 113.
14. In the instant case prosecution has examined all the necessary witnesses to prove the allegations against the accused beyond a reasonable doubt. Accused in their statement recorded U/s. 313 Cr. P.C. have taken plea that they are innocent and falsely implicated in this case. By simply denying the prosecution case the burden to prove their contention shifted upon the accused persons, but, accused persons failed to prove by oral submission or by producing any documents that why they have been falsely implicated in this case or failed to show any motive to implicate them 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 Page No. 6 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 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."
15. As per the judgment of Apex Court in case titled as "Balkishan Vs. State of Maharashtra" Crl. L.J. 1980 page 1424 it has been 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. It gives a corroborative strength to the entire prosecution evidence. I further rely upon judgment cited in 1975 Criminal Law Journal 952 which says (head note reproduced) :-
"(A) Railway Property (Unlawful Possession) Act (1966) Section 3- Seizure of suspected Page No. 7 stolen railway property - No report of theft by Railway - Burden of proof. {Evidence Act (1872), Sections 101-104}.
It is not necessary that there should be a report of the theft of the railway property. It is sufficient if the facts and circumstances disclose that the property is reasonably suspected of having been stolen.
Once it is established that it is the railway property and it is reasonably suspected to have been stolen, the burden shifts upon the accused to show how he came into lawful possession of the same."
16. 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 officer-in-charge of a Police Station under Chapter XIV of the Criminal Procedure Code qua investigation of offence under that Page No. 8 Act, including the power to initiate prosecution by submitting a report (charge-sheet) 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 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".
17. In view of the aforesaid discussion and facts and circumstances accused Madan @ Jogi, S/o. Banwari Lal and Vinod @ Chust, S/o. Balbir Singh are hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 26.05.2007. MM:DELHI.
Page No. 9
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Madan @ Gogi & Anr.
CC No. 12/97
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
ORDER ON SENTENCE
Present: APP for RPF.
Accused/convict No. 1 in J/C.
Accused/convict No. 2 on bail.
Heard on the point of sentence. APP for the RPF submitted that the prosecution has examined witnesses and proved its case hence accused may be convicted in accordance with law. On the other accused/convict persons submitted that they belong to poor family. They further submitted that they have already undergone some imprisonment in this case during the course of trial i.e. Accused/convict No. 1 has undergone imprisonment of 2 months and 22 days and Accused/convict No. 2 has undergone imprisonment of 1 year and 1 month hence, they may be released on undergone imprisonment.
Considering the nature of the offence and socio, economic condition of the accused/convict, accused/convict Madan @ Jogi, S/o. Banwari Lal and Vinod @ Chust, S/o. Balbir Singh is sentenced to One Year R.I. and fine of Rs. 1,000/- I.D. 30 days S.I. each in this case U/s. 3 of RP (UP) Act 1966. Benefit U/s. 428 Cr. P.C. is also awarded to accused persons.
Case property be disposed of in accordance with law. File be consigned to Record Room.
Copy of order be given to the accused/convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 26.05.2007. MM:DELHI. Page No. 10 State Vs. Madan @ Gogi & Anr. CC No. 12/97 PS : RPF/SSB U/s. 3 RP (UP) Act 1966 26.05.2007 Present: APP for RPF. Accused No. 1 in J/C. Accused No. 2 on bail.
Vide separate judgment and order of today accused Madan @ Jogi, S/o. Banwari Lal and Vinod @ Chust, S/o. Balbir Singh are 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 26.05.2007 Page No. 11