Delhi District Court
State vs . Iqbal on 19 March, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Iqbal
CC No. 62/07
PS : RPF/NDLS
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 36/08
b) Date of Institution : 31.01.2008
c) Name of the complainant : SI/RPF Ramesh Kumar
d) The name & add. of accused : Iqbal, S/o. Riyajuddin,
R/o. Vagabond, Footpath,
Ajmeri Gate Side, Delhi
e) Date of commission of
offence : 11.12.2007
f) Offence complained of : U/s. 3 RP (UP) Act 1966
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 19.03.2008
i) Final Order : Convicted
j) Date of Judgment : 19.03.2008
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution are that on 11.12.2007 SI Narender Chand and HC Rajbir Singh were on patrolling duty in the area of PF No. 4/5, NDLS. During patrolling they saw one person carrying one booked consignment and was going towards Sadar Side. On having suspicion over him they apprehended him at about 1.50 hours and checked the said package which was found containing railway marka 812 NDLS BDTS 216008. On enquiry that person disclosed his name as Iqbal Page No. 1 but he could not account for his possession over the said package. Accused admitted his guilt and disclosed that he had committed theft of the said package from the other packages lying at DLI side, PF No. 4/5. The case property was taken to RPF possession and accused was arrested. After completion of necessary enquiry complaint was prepared and filed in the court for trial.
2. Accused was produced from J/C and copy of complaint and other documents were supplied to him.
3. In precharge PE prosecution examined PW1 Shri Rakesh Kumar Sharma, PW2 Shri Nandan Chaddha, PW3 ASI Nanak Chand and precharge PE was closed. A prima facie case was made out to frame charge against accused as such vide order dated 23.02.2008 accused was charged for offence punishable U/s. 3 RP (UP) Act and when the contents of the same were read over to him in verbatim, he pleaded not guilty and claimed trial.
4. In aftercharge PE prosecution examined PW1 Shri Rakesh Kumar, PW3 ASI Nanak Chand and PW4 Ct. Narender Singh and PE was closed. Thereafter statement of accused U/s. 313 Cr. P.C. was recorded in which accused denied each and every incriminating evidence led by the prosecution against him and stated himself to be innocent.
5. I have heard the submissions of learned APP for RPF and accused in person. In this case U/s. 3 RP (UP) the following Page No. 2 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.
6. In order to prove the case property as railway property prosecution examined PW1 Shri Rakesh Kumar Sharma and PW2 Shri Nandan Chaddha. PW1 testified that on 11.01.2008 he reached at RPF Post NDLS and examined the case property i.e. one package and found 85 books and after examination he prepared his report Ex. PW1/A in which he opined that those books were the same which were booked by him company. He identified the case property in the court. PW2 Shri Nandan Chaddha, Parcel Clerk testified that on 11.12.2007 he loaded many packages including 42 packages from NDLS to BDTS in which marka no. NDLS to BDTS P437018/812 was engraved in Train No. 2926 Dn at PF No. 4/5 NDLS. The loading summary of the same is Ex. PW2/A. His statement was recorded in this regard which is Ex. PW2/D. PW2 examined case property in the court.
The testimony of PW1 and PW2 remained unrebutted since accused did not opt to put any question during their cross Page No. 3 examination. Therefore, PW1 and PW2 have proved that the case property bearing railway marka 812 NDLSBDTS 216008 was booked with railway hence railway property.
7. To prove other ingredients of 3 RP (UP) Act prosecution examined PW3 ASI Nanak Chand and PW4 Ct. Narender Singh. PW 3 SI Nanak Chand is the first Enquiry Officer and he testified that on 11.12.2007 he alongwith other staff during patrolling at the end of PF checked one person on having suspicion over him and found that he was carrying one package bearing railway marka no. NDLS to BDTS P43 6008. That person could not account for his possession over said package. Accordingly accused was arrested and case property was recovered vide memo Ex. PW3/A. Accused made disclosure statement, pointed out the place of theft and got his confessional statements recorded vide memos Ex. PW3/B, C and D respectively. Site plan Ex. PW3/E was prepared. Accused was taken to RPF post and case was registered against him and its copy is Ex. PW3/F. Further enquiry was conducted by ASI Ramesh Chand. His statement recorded is Ex. PW3/G. Accused did not cross examine PW3 either in precharge or aftercharge PE despite opportunity granted hence the testimony of PW3 remained unrebutted on the material points. Even otherwise PW4 Ct. Narender Singh also corroborated the testimony of PW3.
8. On the other hand accused in his statement recorded U/s. Page No. 4 313 Cr. P.C. simply denied all incriminating evidence led by the prosecution and taken a plea that he is innocent. By simply denying the prosecution case the burden to prove his contention shifted upon the accused, but accused failed to prove by oral submission or by producing any documents that why he has been falsely implicated in this case or failed to show any motive to implicate him 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 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 Page No. 5 upon him."
9. In case titled as "Balkishan Vs. State of Maharashtra"
Crl. L.J. 1980 page 1424 the Apex Court 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. I also rely upon the observations held in case titled as "Salim Mohamed Babul Miniyar Vs. State of Maharashtra"
2001 CRL. L. J. 58, (BOMBAY HIGH COURT) DR. (Mrs.) Pratibha Upasani, J. Cr. Revn. Appl. No. 243 of 1994 wherein it was held that : "Railway Property (Unlawful Possession) Act (29 of 1966), Ss. 3(a), 8(1) - Unlawful possession of railway property - Accused voluntarily confessed that he had purchased stolen property of railway - Confessional statement recorded by RPF officer making enquiry under S. 8(1) - Is admissible in evidence as he is not a police officer under S. 162 CR. P.C. Conviction based on said confessional statement - Not illegal." Accused has not given any suggestion to PW3 or any other witness in the cross examination that disclosure statement Ex PW3/B and confessional statements Ex. PW3/D were not made by him or that the same do not bear his thumb impression or that he was made to put his thumb impression on the same under threat or Page No. 6 duress.
10. 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 officerincharge of a Police Station under Chapter XIV of the Criminal Procedure Code qua investigation of offence under that Act, including the power to initiate prosecution by submitting a report (chargesheet) 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 Page No. 7 made by him during enquiry under S. 8 - Prosecution under S. 20 (3) not available".
11. In view of the aforesaid discussion and facts and circumstances of the case I come to the conclusion that prosecution has proved its case against accused. Accordingly accused Iqbal, S/o. Riyajuddin is hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 19.03.2008 MM:DELHI.
Page No. 8
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Iqbal CC No. 62/07 PS : RPF/NDLS U/s. 3 RP (UP) Act 1966 ORDER ON SENTENCE Present: APP for RPF.
Convict produced from J/C. Vide separate judgment of today Convict Iqbal is convicted for offence punishable U/s. 3 RP (UP) Act.
Heard on the point of sentence. It is submitted by the convict that he belongs to a poor family. He has further submitted that he has already undergone some imprisonment in Judicial Custody in this case as such he may be released on undergone imprisonment.
Considering the nature of the offence and socio, economic condition of the Convict, Convict Iqbal, S/o. Riyajuddin is sentenced to Three Months R.I. in this case U/s. 3 of RP (UP) Act 1966. Benefit U/s. 428 Cr. P.C. is awarded to accused.
Copy of order be given to the convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 19.03.2008 MM:DELHI.
Page No. 9
State Vs. Iqbal
CC No. 62/07
PS : RPF/NDLS
U/s. 3 RP (UP) Act 1966
19.03.2008
Present: APP for RPF.
Accused Iqbal produced from J/C.
PW1 Shri Rakesh Kumar and PW3 ASI Nanak Chand in person.
PW1 Shri Rakesh Kumar, PW3 ASI Nanak Chand and PW4 Ct. Narender Singh are examined and discharged accordingly. No other PW is present. PE is closed.
Statement of accused U/s. 313 Cr. P.C. is recorded today separately.
Vide separate Judgment and order of today accused Iqbal, S/o. Riyajuddin is 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 19.03.2008 Page No. 10