For the Prosecution •..•.Dr. Anand Singh ....Learned P.P/N.F.Rly/MLG

Date of Argument 2S-02-2014, 14-03-2014

Date of Judgment 26-03-2014

1. Case of the Prosecution in brief is that on the night of11th October, 2010, Constable K.C. Deka of RPF/NBQ apprehended anaccused person while unlawfully possessing a Railway material. He was...

detailed for Railway materials guarding duty at beat no. 3 of Pit line NewBongaigaon station. During his duty period he noticed a person moving insuspicious manner at about 19.30 hrs and he entered into a coach. Onsuspicion, Constable KC Deka proceeded towards the coach and foundthe person removing one fan from the coach no. GS 8159. The persontried to flew away but Constable KC Deka caught him with one fan fromhis possession. On demand he disclosed his name as Gopal Gowala , sonof Late Madhu Gowala of Samsanghat, New Bongaigaon and he alsopointed out the coach from where he removed the fan. Accordingly,Constable Mr. Deka informed the matter to RPF/POST/NBQ at about20.30 hrs. Thereafter ASI/PC Das along with other staff reached the spotand interrogated the accused. The accused failed to produce any legaldocument in support of the recovered fan. Thereafter, ASI/PC Das seizedthe fan from the possession of the accused person by preparing seizurelist and took him under custody. Thereafter, the recovered seizedmaterials as per seizure list along with the arrested person were broughtto the RPF/POST/NBQ and produced before the IPF/NBQ with the writtencomplaint for taking necessary action.

2. IPF/ NBQ registered a case vide no.1 (10) 10 U/S. 3(a) R.P.(UP) Act on11.10.2010 and took over the possession of the seized material. He endorsedthe case to SI/ Kishan Singh for enquiry.

3. After completion of the enquiry of this case the E.O. submitted theprosecution report against the accused person U/S.3(a) R.P.(UP) Act. Findinga prima-facie material this court took cognizance of the offence. Afterhearing both sides this court framed charge U/S. 3(a) R.P.(UP) Act andingredients of the offence were read over and explained to the accusedperson after furnishing copies and the accused pleaded not guilty andclaimed to be tried.

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4. In order to bring home the charges, prosecution exhibited somedocuments as well as materials and examined five (5) witnesses in the formof:

P.W.4 Shri Kishan Singh

P.W.5 Shri Mahendra Prasad Sahu

5. After the completion of prosecution evidence all theincriminating materials against the accused person are put to him u/s. 313Cr.PCfor his explanation. Defense adduced no evidence.

6. I have heard the argument put forward by the learned advocatesappearing for both the parties. I have also carefully perused the entirematerials on record.

7. To ascertain the guilt of the accused persons on the charges. leveled against him the following points are sorted out for decision in thepresent case:

(a) Whether on 11-10-2010 at about 19.30 hrs. the accusedperson unlawfully possessed the Railway Fan at New Bongaigaon andcommitted an offence U/S. 3(a) R.P.(UP)Act or not?

Discussion, .Decision and Reasons Thereof:

8. To decide above points let us make a scrutiny of the evidence ledby the prosecution in support of its case.

P.W.1 Sri Kanak Ch. Deka has deposed by stating that at the time ofincident he was on duty at Beat no. 03 pit line on the nights of 11/12th

October, 2010 from 6pm till 6am next morning. At that time he was alone onduty at 19.30 hrs at beat no. 3 when he saw an unknown person loiteringthere. He deposed that on becoming suspicious of that person, he

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investigated the matter and found that the man entering the GS Coach no.~'" 8159. T~~ man brought out one carriage fan from the said coach. P.W.1

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deposes that when he chased the man, the person tried to run away leavingbehind the said fan. But, the P.W.1 somehow managed to detain theaccused. On being asked accused told his name as Gopal Gowala .Thereafter, the P.W.1 informed the OIC through Walky-Talky about thematter. Soon after, ASI 1 RPFMr.P.C. Das and other staff, reached the spot.ASI Mr. Das interrogated the accused and he confessed his guilt of theft.Thereafter, the said fan was seized and sealed. The P.W.1 h~s signed the saidseizure list. Thereafter, the accused was' brought to the office and hesubmitted a written complaint in the matter. Ext. 1 is the seizure list. Ext. 1(1)is his signature. Ext. 2 is the complaint and Ext. 2(1) is his signature. In hiscross examination, the P.W.1 admits that no other person was present at thetime of the incident. The train was in a standing position and that the saidfan is not available in the open market.

P.W.2 Sri Paresh Ch. Das has deposed that on last 11.10.2010 in theevening time he was on duty at about 8 pm. He was informed over telephoneby the IPF Biswajit Nath that at NBQ Yard Pit line one person was detainedby the on duty constable KC Deka on the charge of having stolen onecarriage fan . Accordingly, he reached the spot immediately. He wasinformed by K.C.Deka that the accused was detained by him as he was tryingto leave with a fan from the standing coach. He learnt that the name of theaccused was Gopal Gowala and the accused admitted his guilt before him. Atthe spot, Madhuram Boro, SSE/CNW/NBQ was also present. The P.W. 2further stated that he prepar~d the seizure list in front of K.C. Deka andMadhuram Boro and seized the said fan. Thereafter, the seized fan alongwith the accused was brought to the RPFPost. Ext. 1 is the Seizure List andExt. 1(2) is his signature. In his cross examination, the P.W.2 has deposedthat at that time no local witness was available. That the house of the saidaccused was near to the railway line.

P.W.3, Sri Madhu Ram Boro has deposed that on the date of theoccurrence, he had gone to the pit line to supervise whether the train wasproperly cleaned. Then, he learnt that a man was detained by RPFalong withone stolen tan. He went there to see the incident. Afterwards, an ASIprepared the seizure list and asked him to sign upon there. Ext. 1 is theseizure list. Ext. 1(3) is his signature. He also deposes that he does notremember the appearance of the accused. In his cross examination , theP.W.3 admits that the stolen fan may be available in the market and that hedid not saw anything written on the fan itself.

P.W.4 Sri Kishan Singh has deposed that on the date of occurrence he

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was working as SIPF/NBQ/RPF and the said case was endorsed by theA.. 11.f •• P,c~.

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IPF/NBQ to him for enquiry. Thereafter) he had examined both the accusedand the witnesses, prepared the sketch map of the P.o. Also, he recordedthe confessional statement of the accused Gopal Gowala. He also preparedthe Material Certificate. On the completion of the investigation, hesubmitted the Prosecution Report. He deposes that the accused hadadmitted his guilt. Ext. 3 is the confessional statement of the accused andExt. 3(1) is his signature, Ext. 3(2) is' the signature of the accused put in hispresence. Ext. 4 is the joint verification report, Ext. 4(1) is his signature. Ext. 5is the theft memo issued by SSE/NBQ dated 11.10.2010, Ext. 5(1) is hissignature. Ext. 6 is the expert certificate. Ext. 7 is the seizure cum Zimmanama, Ext. 7(1) is his signature. Ext. 8 is the sketch map of P.O. Ext. 8(1) is hissignature. Ext. 8(2) is the P.O. Ext. 9 is the PRoExt. 9(1) is his signature. In theCross Examination, the P.W.4 deposes that an independent witness °GovindaSingh was present at the time of recording confessional statement. That theseizure list was prepared on the spot and marking was made on the said fan.

P.W.5 Sri Mahendra Prasad Sahu is a Railway Engineer. He deposedthat on the day of the occurrence he was asked by the IPF/NBQ to visit thePOST. On reaching there, he was requested to examine the seized fan.Afterwards, he gave a certificate to the effect that the seized fan belonged tothe railways and is not available in the open market. Ext. 6 is the materialcertificate and Ext. 6(1) is his signature. In the cross examination, the P.W.5admits that the said fan is in serviceable condition and a new fan will cost Rs.3000/-.

Now we see from prosecution evidence that on the day of occurrencethe accused person was caught carrying a Railway fan at New BongaigaonRailway station area. The RPFpersonnel apprehended him on the spot andseized the fan in presence of witnesses. Accused person was arrested andbrought to the post.

After careful examination of the evidence led by prosecution, itappears that accused Gopal Gowala was indulged in the commission of thesaid offence. The RPFpersonnel intercepted him while he was carrying theseized carriage fan. On demad he could not produce any valid document withregard to such possession. The version of all the P.W.1,2,3,4 and 5 areconsistent, plausible and cogent. Defense could not demolish their veracityexcept by putting some suggestions. The expert P.W.5 certified that theseized fan is Railway property and exclusively used by Railway. The carriagefan is used in railway coaches. As the said fan is Railway property andaccused could not produce any valid documents for it so' it is reasonably

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stolen property. In my humble opinion there is nothing on record to

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disbelieve the prosecution version. Non-examination of local witness by theprosecution is not fatal as the versions of P.W.s are plausible and consistent.Moreover vide Ext.3 the accused person confessed his guilt before RPFofficer. As per section 9 of RP(UP)Act such recording of statement by'RPFofficer is a judicial proceeding and admissible in evidence. No ingredients ofthreat, promise etc could be inferred in this statement. Defense could notdemolish the testimony led by the prosecution, neither they discharged theJrburden to rebut the prosecution evidence. In presence of section 9 of the Actonce the unlawful possession of Railway property by some accused is proved,the burden shifts to the accused to rebut the case. He must prove that suchpossession was legal although not beyond reasonable doubt. To be moreprecise accused should prove at least with certain facts that he obtained thepossession of railway material either by lawful auction or other means.Nothing happened in this case. Rather the statement of accused GopalGowala was well corroborated by all the P.W.s without any ambiguity.

Section 3(a) RP(UP) Act punishes the unlawful possession of Railwayproperties. The moment it is proved that the property is Railway Propertyand the possessor could not justify such possession, he comes under theambit of this section.

In the instant case prosecution witnesses proved the factum ofpossession of railway materials by the accused person. Accused could notjustify his possessory right over the same.

9. From the above appraisal, appreciation of evidence on record,and the application of law, I find that the prosecution has become successfulto establish the offence u/s. 3(a) R.P.(UP) Act against the accused personbeyond all reasonable doubts. Hence the accused is convicted accordingly.Considering the nature, gravity, quantity of seized articles and the manner ofcommitting the offence he cannot be released on probation.

10. I heard all the accused person on the points of sentencing. Accusedperson stated that this is his first offence and he is a very poor person. He isthe sole earning member of his family and he has to maintain his old andailing parents. He prayed for leniency.

11. After considering entire matter specially the fact that the accused isfacing the trial since the year 2010, and the recovered property is only a fan, Isentence him to undergo S.1.for three(3) months and fine of Rs.2000/- i.d. si

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for 30 days.

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12. He is allowed to remain on previous bail till appeal period asprayed for as per law.

13. Furnish a free copy of judgment to the accused person.

14. Learned PP/N.F. Railway shall ensure that the seized property isreturned to the concerned department as per law in due course of time.

...15. Given under my hand and seal of this court on this 26th day of

March, 2014 at Guwahati.

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Sri Bankim Sarma, AJS

Appendix of CRcase no. 24/2010

P.W.4 Mr. Kishan Singh

P.W.S Mr. Mahendra Pd. Sahu

Ext.4 Joint Verifi~ation Report

Ext.S Theft Memo