State vs . Umesh Etc. on 21 September, 2013
19. Moreover, the witness PW1 who issued the theft memo Ex. PW1/A has
deposed in the court that 12 pendrol clips were found missing on 06.10.2004
between Subzi Mandi railway station and Azadpur railway station, Km no. 4/1517.
As per the present complaint the said 12 pendrol clips were recovered from the
possession of coaccused Umesh (already convicted) before the apprehension of
accused Raj Kumar. Apparently, the RPF has not placed on record any material to
show that 154 pendrol clips allegedly recovered from the accused Raj Kumar were a
stolen property. Even if the testimony of recovery witnesses is presumed to be a
gospel's truth qua the recovery of 154 pendrol clips from the possession of accused
Raj Kumar still in the absence of any material to show that the said pendrol clips
were reasonably suspected of having been a stolen or unlawfully obtained property
(as required u/s 3 of the Act), the accused Raj Kumar could not be convicted of the
C.C. No. 12/04 12 of 15
offence punishable u/s 3 of the Act as mere possession of railway property is not
sufficient for conviction. The prosecution is under an obligation to prove that the
recovered property was reasonably suspected to have been stolen or unlawfully
obtained as ruled by the Hon'ble Apex Court in State of Maharashtra v.
Vishwanath Tukaram Umale [AIR 1979 SC 1825] and also in Om Prakash v.
State of UP [AIR 2008 SC 1112]. The prosecution has miserably failed to adduce
any evidence in this regard. On this short ground alone the accused Raj Kumar is
liable to be acquitted.