Delhi District Court
State vs . Anand on 11 July, 2014
IN THE COURT OF SH. PAWAN SINGH RAJAWAT,
METROPOLITAN MAGISTRATE 07 (CENTRAL), DELHI
STATE Vs. Anand
C.C. NO. 21/13
P.S. RPF/TKD
Unique Case ID No. 02401R0430302013
Date of Institution: 17.08.2013
Date of reserving judgment: 1107.2014
Date of pronouncement: 11.07.2014
JUDGMENT U/S 355 Cr.P.C.
a)Date of offence : 21.07.2013
b)Offence complained of : U/s 3RP(UP)Act.
c)Name of accused, his parentage : Anand Kumar
& residence S/o Kamal Sharma
R/o Sanjay Colony, Purana Gaon, Lakadpur, Durga
Vihar, Surajkund Faridabad, Haryana
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 (Unlawful Possession) Act, 1966 (hereinafter referred to as 'the Act'), wherein it is alleged that one person i. e. accused Anand was apprehended at around 4:30 hrs by an RPF team consisting of ASI Fateh Chand and HC Ramesh Chander on 21.07.2013 at TKD up down receiving Yard near FOB while in possession of two ATLs (railway property) which was reasonably suspected of having been stolen or unlawfully obtained. The railway property was seized and accused Anand was arrested vide memo Ex. PW2/A. He made disclosure statement Ex. PW2/B whereby he admitted his guilt. He got prepared a pointing out memo Ex. PW2/C. This case was registered vide DD no. 14 dated 21.07.2013 Ex. PW2/E. The total value of railway property was opined to be Rs. 8000/. 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 pre summoning evidence was dispensed with. Precharge evidence was lead wherein the complainant examined PW2 ASI Fateh Chand and PW3 SI Nafe Singh Soni.
3. 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 21.11.2013 to which he pleaded not guilty and claimed trial.
4. At the trial, in terms of Section 246 CrPC, the witnesses already examined in precharge evidence were recalled for crossexamination in postcharge evidence qua accused. Additionally, prosecution examined PW4 HC Ramesh Chander, PW5 HC SU Khan and PW6 HC Anand Swarop in post charge stage.
5. PW2 ASI Fateh Chand and PW4 HC Ramesh Chander 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 property which was seized and accused was arrested.
6. PW1 Shiv Kumar Parashar issued theft memo Ex. PW1/A when he found two ATL missing from down inter chain yard/ TKD. He also examined the case property at the instance of IO and after verification of the same issued verification report Ex. PW1/B. He identified the case property in the court.
7. PW3 SI Nafe Singh Soni made further inquiry in this case. He recorded the statements of witness and got the case property verified through the railway expert. After completion of inquiry, he filed complaint Ex. PW3/G in the court.
8. PW5 stated that case property was handed over to him on 21.07.2013 at about 7:00 AM in duly seal condition and accordingly he registered the present complaint. PW6 also stated that he made the crime register entry vide DD No. 14 on 21.07.2013 and he prove the copy of said entry as Ex. PW6/A.
9. Statement of the accused under section 313 CrPC was recorded on 30.06.2014 wherein he denied all the allegations and pleaded innocence. He stated that nothing was recovered from his possession. He claimed that he has been falsely implicated in the present 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, Ld. DLSA counsel for 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. A prayer for acquittal has been made.
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
(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. The case of the prosecution has many weaknesses. The prosecution projects the DD Ex. PW2/E as the entry made in the roznamcha register after the arrival of the RPF staff consequent to the alleged apprehension of the accused. Equally, important is the fact that the RPF failed to associate any public person at any stage of enquiry before the filing of present complaint. Infact, the witness examined has not deposed even a word about any attempt made by RPF to associate any independent witness to the recovery proceedings. Further more, it is interesting to note here that the RPF official who allegedly apprehended the accused along with the case property, did all the documentation (i. e. preparation of seizure/arrest memo and disclosure statement) at the spot of apprehension of accused, but has nowhere explained as to why he was carrying the papers, stamp pad etc. while being on patrolling duty. It is not disputed that the patrolling parties of RPF are not obliged to carry the articles mentioned above while leaving the posts for patrolling. It is difficult to understand as to why the RPF official concerned was carrying the abovesaid articles in this case. There is no explanation as to how the said RPF official could complete/fill the said documents without any hard surface to place the documents on, as none of the documents available on record bear any mark of damage which is bound to occur in the absence of any hard surface to place the documents on at the time of scribing the proceedings upon them. This court is unable to comprehend the suspicious conduct of the said RPF official. It is difficult to believe that the documentation allegedly done by the RPF official was in fact done at the spot of apprehension.
Even if, for the sake of arguments, it is believed that the above mentioned documents were prepared at the spot (as deposed by the recovery witness) still chances of prejudice could not be ruled out as the person who made the recovery from the accused also recorded the disclosure statement, prepared the pointing out memo and got the roznamcha entry recorded. 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. 73See.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 placed before this court by the Ld. PP for 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.
16. In this matter, the inquiry officer did nothing except recording of statements of witnesses, get the case property verified and to file the complaint in the court. A major part of documentation was carried out by the RPF Officials who allegedly arrested the accused red handed. This court is of the considered opinion that chances of prejudice to the accused could not be ruled out in view of the fact that railway property is mostly lying unclaimed in open. The above mentioned conduct of the RPF in blatantly violating the prescribed procedures, if encouraged, would lead to anarchy. On account of this reason also the recoveries allegedly made from the accused could not be believed by this court.
17. As per testimony of PW3 after verification of the case property, he had put his seal on the same and handed over the Katta to Ct. Raja Ram for depositing the same in Malakhana . But when the case property was produced before the court, the said seal of NS Soni was not found on the relevant card level Ex. P1. This absence of seal also raises questions about the correctness/truthfulness of the testimony of PW3 as well as seizure and safe custody of case property. As per testimony of PW1 SI Nafe Singh Soni produced the Katta duly sealed with the seal of NS i.e. before case property was verified by PW1 whereas PW2 admitted during cross examination that case property was sealed with the seal of NS. There is no explanation how the seal of NS came on the case property before its production before the verification officer. The MHC(M) who has taken the case property in his custody was not examined. The chances of tempering with the case property cannot be ruled out and creates doubt upon the version of the prosecution.
18. 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. 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. 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".
19. 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. 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 doubt to the accused and it is not safe to sustain conviction".
20. The accused Anand deserves benefit of doubt and is accordingly acquitted of all charges.
Announced in the open court this 11th day of July 2014.
(PAWAN SINGH RAJAWAT) MM07 (Central), Delhi 11.07.2014