Delhi District Court
State/Rpf vs Rakesh Kumar Pandey on 26 October, 2012
IN THE COURT OF SH. LOVLEEN,
METROPOLITAN MAGISTRATE 03 (CENTRAL), DELHI
CC No. 566/III/11 [Crime Case No. 28/10, PS. RPF/NDLS]
Unique Case ID No. 02401R0032402011
Date of Institution: 20.01.2011
Date of reserving judgment: 26.10.2012
Date of pronouncement: 26.10.2012
In re:
State/RPF versus Rakesh Kumar Pandey
S/o Sh. Ram Sumer
R/o E2/211, Gali no. 7, Sonia Vihar, 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 Rakesh Kumar Pandey 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 one booked consignment worth Rs. 1500/ (approximately).
2. Briefly stated, the case of the prosecution is, that on 03.12.2010 while the RPF officials including ASI Jai Pal Singh, ASI G.P. Meena and ASI Kabul Chand were on patrolling duty at NDLS Station, at about 21.30 hrs, when they reached near Sheela Bridge, they saw one person while carrying one plastic bag. The identity of the accused was disclosed as Rakesh Kumar Pandey. The material being carried by him C.C. No. 28/10 1of 12 was checked. Accused was found in possession of one booked consignment. 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 ASI G.P. Meena, PW2 ASI Kabool Chand, PW3 Ram Gopal Yadav, PW4 ASI Jai Pal Singh, PW5 Rukmani, PW6 Devi Charan and PW7 SI Mahender Singh.
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 23.05.2012, 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. PW1, PW2 and PW4 were a part of the RPF team who had apprehended the accused. All 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. PW1/A. Disclosure statement and pointing out memo which are Ex. PW1/B and PW2/C respectively were prepared. Confessional statement Ex. PW1/E was recorded Site plan Ex. PW1/D was prepared. Case was registered vide DD no. 44 dated 03.12.2010 which is Ex. PW1/F.
7. PW3 Ram Gopal Yadav proved the theft memo Ex. PW3/A. C.C. No. 28/10 2of 12
8. PW5 Rukmani was the receipt clerk. She deposed to have booked 22 parcel packages from NDLS to Gowhati under RR no. 32132 and prepared RR and verified copy of the same is Ex. PW5/A.
9. PW6 Devi Charan was the railway marker who put railway marka, no. 32132 on 22 parcels booked from NDLS to Gowhati.
10. PW7 SI Mahender Singh made further inquiry in this case. He got verified the case property through the expert and proved the previous conviction record of accused Ex. PW7/B. He recorded the statements of witnesses. After completion of inquiry, he filed the complaint Ex. PW7/C in the court.
11. PW8 Shiv Charan Meena was the loading and unloading clerk who loaded four packages bearing RR no. 32132 out of 22 packages booked from NDLS to Gowhati. He prepared the loading summary and proved the certified copy of the same Ex. PW8/A in the court.
12. PW9 Rama Kant Dass was the unloading clerk who had unloaded 17 parcel packages out of 22 packages and 4 parcel packages bearing RR no. 32132 booked from NDLS to Gowhati. He proved the true copy of tally book as Ex. PW9/B in the court.
13. PW10 Babloo @ Baba was the public person who had booked 22 cartons through railways from NDLS to Gowhati. He also identified the stolen case property which was produced before him by the IO at RPF post NDLS. He gave his detailed verification report Ex.PW7/A and identified the empty bardana in the court.
14. PW11 Amit Mahajan was the junction clerk who sent 22 parcel packages booked from NDLS to Gowhati bearing RR no. 32132 to Howrah Kanta.
15. PW12 Anand Kumar was the junction clerk who shifted 21 parcel packages out of 22 booked from NDLS to Gowhati bearing RR no. 32132 at PF no. 12/13, NDLS C.C. No. 28/10 3of 12 Station for loading to Howrah Kanta.
16. PW13 Mukesh Kumar was the weighment clerk who weighed 22 parcel packages. He weighed the same and made entry behind the forwarding note and proved verified copy of the same already Ex. PW10/A in the court. PE was then closed.
17. Statement of the accused under section 313 CrPC was recorded on 27.08.2012, 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. He claimed that he used to fetch newspapers arriving from Ratlam by Bombay Rajdhani Express which was then distributed by him as complimentary copies in different ministries. However, he chose not to lead any evidence in defence.
18. 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.
19. 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.
20. 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.
21. 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 C.C. No. 28/10 4of 12 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..."
22. 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.
23. The Railway Protection Force was constituted by the Parliament of India by Railway Protection Force Act 1957, the preamble of which Act mentions the constitution of RPF as an armed force of the Union in order to provide better protection and security to railway property, passenger area and passengers and for matters connected therewith. In order to deal with the enormity of problems of theft and pilferages on railways, Railway Property (Unlawful Possession) Act 1966 was enacted C.C. No. 28/10 5of 12 which conferred powers upon certain members of the RPF to arrest any person found in unlawful possession of railway property and to further conduct an inquiry under the said Act. After the conduct of the inquiry, stipulated under the Railway Property (Unlawful Possession) Act 1966, complaints like the one in hand are filed before the concerned Magistrates. 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. In order to regulate the inquiry anticipated u/s 8 of Railway Property (Unlawful Possession) Act 1966, certain rules have been made/codified under Chapter XIV titled "Investigation and Prosecution" of Railway Protection Force Rules 1987, prescribing, under Rule 222.1, that all the crimes affecting 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). Similarly, under rule 223 of RPF Rules, it has been provided that all seizures or recoveries of railway property shall be entered in malkhana register and an entry to that effect has to be made in the concerned crime register. It has been further provided under rule 223.2 of the RPF Rules that where the seized property cannot be linked to the railway property for which theft or shortage memo has been issued, the same shall be entered in Railway Property (Unlawful Possession) Act register. 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, a theft memo was received at the RPF post concerned on 03.12.2010 but the necessary entries do not C.C. No. 28/10 6of 12 appear to have been made in the localized crime register without any explanation in this regard by the RPF. This court cannot lose sight of the fact that security agencies like the RPF have been granted wide powers for the apprehension and arrest of offenders. In order to channelize and restrict the misuse of the said powers, certain rules regarding the conduct and procedure of the security agencies have also been prescribed. In the present case the RPF has blatantly violated the mandate of rules 222 and 223 of RPF Rules 1987 by not making the necessary entries. In fact, the RPF officials who allegedly arrested the accused red handed made entries in one Roznamacha register at serial no. 44 on 03.12.2010 copy of which is Ex. PW1/F. Upon inquiry, the Ld. PP for RPF has fairly admitted that no such Roznamcha register is prescribed to be maintained as per the RPF Rules 1987. If that were so, this court fails to understand as to how the RPF is maintaining registers in the nature of Roznamcha register, copy of which has been placed on record. This further reveals that the RPF officials are innovating on their own without scant respect for the prescribed rules. The least that could be said about such a conduct of a pan India Armed Force is that the RPF is being run in an unprofessional manner. This further makes this court extra cautious and circumspect in appraising the evidence educed on record by the RPF.
24. 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 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 C.C. No. 28/10 7of 12 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. PW5 is the railway official/receipt clerk who booked 22 parcel packages under RR no. 03213 on 29.11.2010. Verified copy of railway receipt regarding the booking of said parcels has also been exhibited in the statement of PW5 as PW5/A. 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. In the present case, the prosecution has not produced the original parcel way bill/luggage ticket Ex. PW5/A, nor has the prosecution sought permission of this court to lead secondary evidence as to the said parcel way bill/luggage ticket. The Ld. PP for RPF has not produced any law which prescribes the proof of parcel way bill/luggage ticket Ex. PW5/A in the manner as followed by the prosecution in this case nor has the Ld. PP for RPF stated the parcel way bill/luggage ticket Ex. PW5/A to be per se admissible. In these circumstances, the document Ex. PW5/A cannot be held to have been proved as per law and accordingly could not be relied upon by this court. Since the first document, by which the railways take charge of the goods allegedly recovered from the possession of accused, has not been proved in accordance with law, this court could not hold that the case property allegedly recovered from the accused is a railway property. Similarly, the prosecution has placed only the verified/certified copies of loading summary Ex. PW8/A and tally book (regarding the unloading of one deficient parcel at the destination) Ex. PW9/A, C.C. No. 28/10 8of 12 which are also inadmissible for want of proper proof and could not be relied by this court. This court is unable to understand as to why the prosecution is holding back original documents mentioned above. The only evidence left qua this aspect is the testimony of PW10 Babloo who deposed to have booked the 22 parcels out of which one was stolen and allegedly recovered from the possession of accused. However, the said witness did not produce the original forwarding note but a verified copy of the same was exhibited in the statement of said witness as Ex. PW10/A without any justification as to why the original forwarding note was not produced in the court during trial. As such, the said forwarding note Ex. PW10/A also could not be held to have been proved as per law. In the absence of relevant documents, this court finds it 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. On this short ground alone, the accused is liable to be acquitted.
25. 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 coolies are always present in the railway premises. This court can take note of the fact that running of railways is a 24 hours herculean 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 C.C. No. 28/10 9of 12 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".
26. 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 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 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. Moreover, the witnesses who proved the alleged confessional statement are the persons C.C. No. 28/10 10of 12 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.
27. 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 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 C.C. No. 28/10 11of 12 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".
The accused Rakesh Kumar Pandey deserves benefit of doubt and is accordingly acquitted of all charges.
Announced in the open court
this 26th day of October, 2012
LOVLEEN
MM03 (Central), Delhi
C.C. No. 28/10 12of 12