Delhi District Court
State vs . Ganesh Etc on 11 August, 2014
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 07 (CENTRAL), ROOM NO.137,
TIS HAZARI COURTS, DELHI
STATE Vs. GANESH ETC
C.C. NO. 02/13
P.S. RPF/SSB
Unique Case ID No. 02401R0372582013
Date of Institution : 01.05.2013
Date of reserving judgment : 02.08.2014
Date of pronouncement: 11.08.2014
JUDGMENT U/S 355 Cr.P.C.
a)Date of offence : 04.03.2013
b)Offence complained of : U/s 3RP(UP)Act.
c)Name of accused, his parentage : (1) Ganesh @ Ajay
& residence S/o - Kuldeep,
R/o Village Bhadgo, PS Gagah,
District Gorakhpur, UP.
(2) Golden Singh
(Already convicted through Plea
Bargaining)
d)Plea of accused : Pleaded not guilty
e)Final Order : Acquitted
JUDGMENT:
1. This is a complaint case filed by the officials of Railway Protection Force (RPF) under section 3 of the Railway Property CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 1/14 (Unlawful Possession) Act, 1966 (hereinafter referred to as 'the Act'), wherein it is alleged that two persons namely Golden Singh (convicted through plea bargaining) and Ganesh @ Ajay were apprehended at around 19.10 hrs by an RPF team on 04.03.2013 near Himachal Cold store, Lawrence Road with the jurisdiction of RPF and were found in possession of two rice bags (railway booked consignment) and 10 pendrol clips which was reasonably suspected of having been stolen or unlawfully obtained. Accused Ganesh @ Ajay also allegedly admitted to have stolen seven rice bags on 17.02.2013 alongwith Golden Singh from Goods train out of which 05 bags were recovered previously on 17.02.2013 and valued of Rs. 5750/. The railway property was seized, accused Ganesh @ Ajay and Golden were arrested and personally searched vide memo Ex. PW7/E. Their disclosure statements were recorded vide Ex. PW7/F and Ex. PW7/G and confessional statements Ex. PW7/I and Ex. PW7/J. Sample chit is Ex. PW7/H and seizure of bicycle is Ex. PW7/K. Joint statement is Ex. PW7/L. Theft memo is Ex. PW1/A. This case was registered vide DD No. 29 vide Ex. PW7/B. Further inquiry was conducted and after completion of the same, this complaint was filed in the court.
2. 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 Shashi Bhushan Kumar, PWS/SSB, PW2 Inspector Anil Kumar, PW3 Ganpat Singh, Loco Pilot, PW4 Satish Kumar Singh, Assistant, FCI Depot, Jaito, Punjab, PW5 Sarabjeet Singh, Assistant, FCI Depot, Jaito, CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 2/14 Punjab, PW6 SI Uttam Sharma, PW7 SI Subhash Bishnoi.
3. On the basis of precharge evidence so lead, charge for the offence under section 3 of the Act was framed against the accused Ganesh @ Ajay vide order dated 05.01.2013 to which he pleaded not guilty and claimed trial. In the present case, accused Golden Singh has already been convicted through plea bargaining vide order dated 05.06.2013. Hence, this judgment is passed in respect of accused Ganesh @ Ajay only.
4. At the trial, in terms of Section 246 CrPC, the witnesses already examined in precharge evidence were recalled for crossexamination in postcharge evidence. Additionally, PW8 HC Rajbir Singh, PW9 Prem Singh Rathore and PW10 HC Anil Kumar examined in post charge evidence.
5. PW7 SI Subhash Bishnoi, PW10 HC Anil Kumar and Ct Wazir were a part of the RPF team which apprehended the accused. These witnesses deposed about the apprehension of the accused while in the possession of the railway consignment which was seized and accused were arrested.
6. PW1 Shashi Bhushan Kumar is the railway official who issued the theft memo of 10 pendrol clips. He also examined and identified the stolen case property which was produced before him by the IO at RPF post SSB. He proved his detailed verification report as Ex. PW1/B and identified the case property in the court as Ex. P4 colly.
7. PW3 Ganpat Singh is the Loco Pilot of the goods train who informed the guard as well as Station Master regarding throwing of CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 3/14 gunny bags from 6th wagon near the engine by some people. He proved memo issued by him vide Ex. PW3/A.
8. PW2 Inspector Anil Kumar stated that on receipt of information by Station Master regarding goods train placed at east center near yard line as informed by driver of said train that some people were removing gunny bags, he alongwith SI Subhash Bishnoi, HC Anil Kumar and Ct Wazir Singh reached the spot. He proved his statement as well as certified copy of C3 Register pertaining to theft of booked consignment vide Ex. PW2/A and Ex. PW2/B.
9. PW4 Satish Kumar Singh is the official of FCI, Jaito, Punjab and verified rice bags recovered vide verification report Ex. PW4/A being transported through railway.
10. PW5 Sarabjeet Singh is also official of FCI, Jaito, Punjab who got loaded 51,500 rice bags for transport to Navalur Karnataka in 42 wagons on 16.02.2013. He proved the certified copy of loading summary vide Ex. PW5/A as well as his statement vide Ex. PW5/B.
11. PW8 HC Rajbir Singh is the roznamcha writer and Santary and stated that on 04.03.2013 at about 22.30 hours SI Subhash Bishnoi, HC Anil Kumar, Ct Wazir Singh, Ct Dharmender and Ct Manoj Kumar alongwith two accused, one seized bicycle, two jute bags and one plastic bag came to RPF post and SI Subhash Bishno got registered DD No. 82 Ex. PW8/A (OSR) regarding arrest and seizure of case property.
12. PW9 Prem Singh Rathore is the DD writer and stated that on 18.02.2013 at about 9.30 hours SI Subhash Bishnoi alongwith RPF CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 4/14 staff came to RPF post and brought five rice bags and got registered a case against unknown person. He proved the copy of DD entry regarding the registration of case vide Ex. PW7/B.
13. PW10 HC Anil Kumar was part of patrolling party which discovered the theft as well as part of raiding team which apprehended the accused.
14. Statement of the accused under section 313 CrPC was recorded on 31.07.2014 wherein he denied all the allegations and pleaded innocence. He stated that nothing was recovered from his possession. However, he chose not to lead any evidence in defence.
15. 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.
16. On the other hand, Ld. defence counsel has submitted that the entire prosecution case is false. It is argued that the entire case is based only on the testimony of interested witnesses. A prayer for acquittal has been made.
17. 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.
18. 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 CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 5/14 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
(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...".
18. 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.
20. The Railway Property (Unlawful Possession) Act 1966 was enacted which authorizes certain members of RPF to arrest any person found in unlawful possession of railway property, to conduct an inquiry in this regard u/s 8 (of the Act) and then to file a complaint. The inquiry has been deemed to be a "judicial proceeding" vide CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 6/14 Section 9 (4) of the Act for the purposes of Sections 193 & 228 of the Indian Penal Code (IPC).
In order to regulate the powers of RPF, conferred under the Act, the Railway Board issued order no. 73 SPL/REGN/CH.XXV dated 09.07.1975 whereby all the procedures to be followed from the moment of arrest of an offender (under the Act) till the forwarding of the complaint for trial has been laid down.
21. In the present case, the RPF has not followed the procedure laid down by the statutory bodies to regulate the inquiry anticipated u/s 8 of the Act as the RPF officers who allegedly apprehended the accused not only prepared the recovery memo (vide which the case property was allegedly seized from the possession of accused), but also the disclosure statement, the pointing out memo, the confessional statement, the site plan. This conduct of the said RPF official is in direct violation of the Railway Boards order dated 09.07.1975 (as mentioned before in this judgment) which prescribes, under rule no. 7, that the apprehending RPF officials were to prepare only a recovery memo and then bring the entire facts and circumstances into the notice of officer Incharge of the RPF post. Thereafter, the said apprehending RPF officials ought to have handed over the accused alongwith case property recovered and the recovery memo to the officer Incharge of the concerned RPF post. In this case, a substantial part of inquiry was conducted by the RPF officials who apprehended the accused. The inquiry officer's role was negligible as he merely got the case property identified and then prepared the remaining CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 7/14 documents available on record. In these circumstances, chances of prejudice to the accused at the hands of apprehending RPF official could not be ruled out. More over the case property is sealed, unsealed at the RPF post for "verification" purposes with the seals of RPF officials without any measure to check the misuse of seal. This practice further opens the doors to manipulations by RPF at their will.
22. This court shall now deal with the evidence available on record pertaining to the question of the identification of the case property as railway property. The prosecution is under an obligation to prove beyond reasonable doubt that the case property allegedly recovered from the accused is a railway property. For any property to be a railway property, it should have been proved to be in possession of or in the charge of the railway administration (section 2(d) of the Act). As far as the consignments are concerned, the same come into the possession of the railway as soon as the same are accepted for consignment. Until the same is delivered at the destination to the consignee after completion of all formalities, the same remains in custody of the railways. In case of any loss in the transit, the responsibility is that of the railways. Further, the railway marka which is put by the railway officials on every such package booked through railway bearing the specific RR No. (railway receipt number), shows that the property was a railway property. The Ld. PP for the RPF has apprised this court that the booking clerk is the initial interface of the railway which deals directly with the private persons who approach the railway for transport of goods (consignments). The booking clerk CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 8/14 receives the Forwarding Note from the private persons which forwarding note is prepared by the said private persons. After that the same is taken into custody by railway and remains a "Railway Property" till its delivery at the destination. In the present case, the public witness PW5 was the person who verified the case property as booked for transport via railways however, he never produced the original Forwarding Note during trial. In the absence of the original RR, this court could not hold that the Forwarding Note has been proved as per law. Having held so, this court is of the opinion that once the first link in the chain of events bringing the case property under the ambit of "railway property" snaps, it is difficult to believe the version of the prosecution that the case property allegedly recovered from the accused was a railway property, which is the first and the foremost ingredient of the offence punishable u/s 3 of RP(UP)Act 1966. Moreso when the Railway Receipt (RR) (which is to be prepared on the basis of forwarding note) has also not been proved during trial. On this short ground alone, the accused is liable to be acquitted. Testimony of PW5 is not sufficient in this regard as the said witness has merely deposed about the verification of parcel packages belonging to FCI.
23. The case of the prosecution has many other weaknesses apart from the above mentioned technical shortcomings. The prosecution projects the DD no. 29 as the entry made in the roznamcha register after the arrival of the RPF staff consequent to the alleged theft. However, the prosecution has not placed the relevant departure CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 9/14 entries of the RPF staff vide which they left the RPF post for patrolling the area and also for apprehending the accused on the basis of secret information and recovered case property. There is no justification forthcoming on behalf of RPF, to exclude the departure entries. Equally, important is the fact that the RPF failed to associate any public person at any stage recovery of case property before the filing of present complaint. Infact, the witnesses examined have not deposed even a word about any attempt made by RPF to associate any independent witness to the recovery proceedings and on the contrary admitted presence of public at the spot of recovery. 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".
24. Lastly, the only material that is left on record against the accused is his confessional statement allegedly recorded by the RPF officials at the spot of apprehension. Ld. PP for RPF has argued that the confessional statement made by the accused to RPF is admissible in evidence. No doubt the confessional statement recorded by RPF officials is admissible in evidence as observed by the Hon'ble Apex CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 10/14 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 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 fear, 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. In fact the confessional statement contains a recital whereby the accused seeks to be forgiven by the apprehending RPF officials. Apparently the accused could not be presumed to be free from any undue influence. Moreover, the witnesses who proved the alleged confessional statements, 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. The CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 11/14 confessional statement of accused was recorded by the same RPF officials who were a part of the team which allegedly apprehended the accused redhanded. In the totality of the circumstances, this court could not reasonably believe the absence of any pressure upon the accused at the relevant time. This court has already held in the preceding paragraphs that the documentation done at the spot by the RPF officials is not entirely free of doubts. Extra judicial confessions like the one in hand are always considered to be a weak piece of evidence. In the absence of any corroborative material and the absence of any public/independent witness who could depose about the sanctity of the confessional statement available on record, this court is not inclined to act upon the same and convict the accused.
25. 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".
CC No. 02/13PS- RPF/SSB State Vs. Ganesh Etc Page 12/14 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. It has been held in Balkisihan Devidayal Vs. State of Maharashtra (1981) SCC (Crl) 62 that the statement made to an RPF officer will not be hit by Section 25 of the Evidence Act, 1872. In Babu Lal Vs. State 1977 Crl. L.J. 2008 ( All ), it was held that the statements recorded by the officers of the RPF during the investigation do not attract the provisions of Section 162 Cr.P.C. In Chinna Vs. State, (1977) 2 Karn LJ 480, it was held that the statements recorded by an officer of the RPF in the course of inquiry can be read in evidence. This makes it all the more necessary for the court to cautiously evaluate the confessional statement purportedly made by an accused to an officer of the RPF soon after his arrest. The court will have to be satisfied that the statements was voluntary. Otherwise, it will be a denial of a just, fair and reasonable procedure and constitute a violation of Article 21 of the Constitution as well. The voluntariness of the statement will have to be tested on a case by case basis and evaluated in light of the attendant circumstances of each case.CC No. 02/13
PS- RPF/SSB State Vs. Ganesh Etc Page 13/14 Where there are no public witnesses associated, or where, as in the present case, all the RPF officers stated to have been present at the time of arrest do not sign the confessional statement, or where, as in the present case, the entries mandatorily required to be made in the registers maintained under the RPF Rules as regards the arrest of the accused and the seizure of the railway property are not proved by producing the original registers, if would be unsafe for the Court to proceed to convict the Respondent only on the basis of his confessional statement".
26. In 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. The accused Ganesh @ Ajay deserves benefit of doubt and is accordingly acquitted of all charges.
File be consigned to Record Room after due compliance.
Announced in the open court (PAWAN SINGH RAJAWAT) this 11th day of August 2014 METROPOLITAN MAGISTRATE07 CENTRAL/DELHI CC No. 02/13 PS- RPF/SSB State Vs. Ganesh Etc Page 14/14