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IN THE COURT OF SPECIAL RAILWAY MAGISTRATE, TINSUKIA
Judgement of Case.No. SR/CR – 131/10
RPF/POST/BPB – Case No. – 1(05) 09.
Present: A.A.Choudhury, A.J.S
U/S 3(a) of the Railway Property (Unlawful Possession) Act, 1966
N.F Railway
Versus
1. Sri. Fakar Uddin
S/o. Late Amad Uddin.
Vill and P.O. Malua, Jalal Nagar
P.S. Badarpur.
Dist: Karimganj, Assam.
2. Sri. Kamal Uddin @ Kamal
S/o. Md. Abdul Noor.
Vill: North Kandigram, P.O. Malua.
P.S. Badarpur.
Dist: Karimganj, Assam.
... Accd persons
2
Evidence recorded on : 07.01.11, 09.03.11, 08.04.11, 16.07.11, 13.09.11,
06.03.12, 06.01.15, 15.05.15,
Statement-in-defence U/S 313 Cr P C: 19.05.15
Argument Heard on : 21.08.15
Judgement delivered on : 11.09.2015.
J U D G M E N T AND O R D E R
1. The prosecution case in a nutshell is that on 07.05.09 while Sri. Dipankar
Rai Choudhury A.S.I. Panchgram O.P. along with staff was conducting
‘Naka - Checking’ at Dholeswari Tri-junction, at about 7.30 P.M. one maruti
car which was coming from Janaki Bazar was signalled to stop but the said
car fled; bypassing the signal. The police party on chasing the said car
apprehended it, while the driver managed to escape. One person was
found inside the car who identified himself as Fakaruddin. On searching the
car, 12 nos. CST-9 Pot were recovered and subsequently seized by Sri.
Dipankar Rai Choudhury. On questioning the apprehend person
Fakaruddin, he disclosed the name of the fled away driver as one ‘Kalam’.
Then, the apprehended person along with the seized materials and car
were handed over to the Officer-in-charge by Sri. Dipankar Rai Choudhury
who lodged an F.I.R. (Exhibit -15) before the i/c, Panchgram O.P. and
accordingly a case was registered vide Algapur P.S Case No. 81/2009
dated 08/05/2009 U/S 379 / 411 I.P.C.
3
2. The Ld. C.J.M. Hailakandi vide order dated 14.05.2009 was pleased to
allowed the prayer of I.P.F/R.P.F./Badarpur dated 10.05.2009 for
conducting enquiry of the said case by R.P.F. Badarpur. Accordingly, on
19.05.2009 the seized materials were re-seized by Sri. Prabir Roy, ASI/
R.P.F/B.P.B. vide a re-seizure list dated 19.05.2009 (Exhibt-2). Thereafter,
Sri Rakhal Ch. Paul, ASI/ R.P.F/B.P.B. lodged a complaint to the IPF/BPB
which was registered as a case vide No. 1(5)09 U/S 3(a) of the Railway
Property (Unlawful Possession) Act, 1966 [in short referred to as 3(a)
RP(UP) Act] dated 19.05.2009 and ASI/Prabir Roy was endorsed as Enquiry
Officer for causing enquiry and report. At the conclusion of the enquiry,
Prosecution report vide P.R. No. 02/10 dated 09.02.2010 U/S 3(a) RP (UP)
Act was submitted against accused: (i) Sri. Fakar Uddin, S/o. Late Amad
Uddin, Vill and P.O. Malua, Jalal Nagar and (ii). Sri. Kamal Uddin @ Kamal,
S/o. Md. Abdul Noor of Vill: North Kandigram, P.O. Malua, both under P.S.
Badarpur, Dist: Karimganj, Assam, where value of the seized materials are
shown to be valued at Rs. 2,000/- approximately.
3. During the trial, particulars of offence U/S 3(a) of the said Act were read
over and explained to both the accused persons to which they pleaded not
guilty and claimed to be tried. Accordingly, charges under the said section
were framed against the aforesaid accused persons on 10.05.11. The
prosecution side examined as many as 09 PWs (prosecution witnesses) to
establish the charge, whereas the defense side did not have any DWs
(defence witnesses) and Statement in Defence U/S 313 Cr P C was also
4
recorded of both the accused persons on 19.05.15, wherein both accused
persons denied the charges. Accused Kamal Uddin stated that the seized
car bearing Registration No. AS-10/5399 belongs to him but on that day,
ie., on 07.05.2009, he had given the car to Fakar Uddin as he asked for it
for visiting his relatives. Accused Fakar Uddin stated that nothing was
recovered from the said car and he has been falsely implicated in this case
and was also forced to sign some papers.
4. Points for determination:
(i) Whether the accused Fakar Uddin and Kamal Uddin committed theft or have
been in possession of railway property suspected to be stolen materials or
unlawfully obtained?
(ii) Whether the seized materials are railway property?
(iii) Whether the accused persons are guilty of the offence charged?
Decision thereon and Reasons for the decision;
5. PW 6 deposed in his evidence that on 07.05.09 at about 07:30 pm during a
Naka Checking at Dholeswari trijunction, one car coming from janaki Bazar
side was signalled to stop byt the said car sped towards Silchar side
ignoring the signal. On challenging, the said car was intercepted while the
driver managed to escape. PW 6 also stated that one person who identified
himself as Fakar Uddin was found sitting in the car and on searching the
car, 12 nos. CST-9 Pot were recovered and seized. PW 6 also stated that
5
the apprehended person disclosed the name of the absconding driver as
Kalam. Then, PW 6 lodged an FIR before the before the i/c, Panchgram
O.P. who registered a case as aforesaid. PW 6 also stated that on 19.05.09,
ASI/RPF/Prabir Rai re-seized the seized materials alongwith the car.
6. In his cross examination, PW 6 stated that there were 2-3 independent
witnesses at the time of seizure but PW 6 has forgotten to recollect their
names. PW 6 stated that he did not furnish a copy of the seizure list to
apprehended accused Fakar Uddin. PW 6 stated that he had seized 09 nos of
CST 9 Pots from the said vehicle. PW 6 stated that he cannot say the
registration no. of the said vehicle from where materials were seized, but the
same was a Maruti 800 white colour car. PW 6 stated that the said vehicle
stopped about 50 metres ahead of Naka Checking barrier near Bagmara
Bridge. PW 6 stated that he has not seen the person driving the vehicle and
that accused Fakar Uddin disclosed the name of the driver as Kalam. PW 6
stated that he has lodged the ejahar but does not remembers the date. PW 6
stated that he has signed the re-seizure list but has forgotten the date.
7. PW 3, PW 4 & PW 8 deposed in their evidence that on 07.05.09 at about 07-
07:30 pm at Dholeswari Tiniali, one car was signalled to stop at the Naka
Checking but the said car did not stop and proceeded towards Katakhal side.
After some time, police personnel intercepted the car. The PWs stated that one
person was sitting in the car and about 10-12 nos of iron sleeper were
recovered from the car and later seized by the poice. Exhibit 4(1), 4(2) & 4(3)
are signatures of PW 3, PW 4 & PW 8 respecively in the seizure list.
6
8. PW 3 in his cross examination deposed that there was only one person in the
car and there was no driver in the said car. Again, PW 3 stated in his cross
examination that poice had arrested the driver and another person in this case.
PW 4 stated that the seizure list was prepared in his presence but he did not
see the other 2 witnesses signing the seizure list. PW 4 stated that he cannot
say the registration number of the vehicle not can say the name of the
apprehended person. PW 8 stated that he does not know the contents of the
seizure list (Ext. 4). PW 8 also stated that he cannot say whether the material
exhibit produced in the Court are the seized materials or not.
9. At this stage, on perusal of the C/R, it is seen that PW 6 is the seizing officer
and PW 3, PW 4 and PW 8 are seizure witnesses who were stated to be
present at the place of seizure on the relevant date. In the Seizure List (Ext. 4)
it is stated that 12 piece of broken fixed plate (Caster) loaded in vehicle No. AS
10- 5395 alongwith the said vehicle were seized on 07.05.09 by ASI/ Dipankar
Rai Chowdhury (PW – 6), whereas PW 6 in his deposition stated that he had
seized 09 nos of CST 9 Pots from said vehicle. PW 6 stated that he cannot say
the registration no. of the said vehicle from where materials were seized. The
aforesaid PWs stated that they have seen only one person in the car. PW 6
stated that he has not seen the person driving the vehicle and that accused
Fakar Uddin disclosed the name of the driver as Kalam. The seizure witnesses
have stated that there were about 10-12 nos of CST 9 Pots. From juxtaposition
of the above witnesses, it appears that, firstly, all these witnesses have seen
only one person in the car and none of them have actually seen the alleged
7
driver of the car. PW 6, the seizing officer conducting Naka Checking deposed
that the said vehicle stopped about 50 metres ahead of Naka Checking barrier
near Bagmara Bridge, yet, none has reportedly seen any person fleeing from
the car or any second person in the car. The existence of another person
driving the car has been stated by the person found inside the car, who stated
before the police that one Kalam, was driving the car and he fled away leaving
the car. In this circumstance, it is quite surprising to believe that a person
disregarding police signal at a Naka Checking stops at a mere distance of about
50 metres from the said Checking and later, flees away without catching
attention of any person/witnesses. Also, there is a clear discrepancy with
regard to the quantity of the seized materials, in so far as, the seizing officer is
clearly stating contrary to the quantity mentioned by him in the seizure list at
the time of seizure.
10. PW 1, the complainant deposed in his evidence that on 07.05.09 at about 7.30
pm, PW 1 alongwith Sri. Dipankar Rai Choudhury A.S.I. Panchgram O.P. while
conducting ‘Naka - Checking’ near Dholeswari Tri-junction bridge, found a
white colour Maruti car bearing registration No. AS 10 – 5399 with a driver and
another person inside the said car. PW 1 stated that 12 nos CST 9 Pots were
recovered from the car and the driver of the car fled away. PW 1 also deposed
that one Fakar Uddin was found inside the car and he stated that the driver
was one Kamal Uddin who fled away. He also stated that then a case was
registered U/S 379 IPC by the police on 08.05.2009. PW 1 further stated that
pursuant to order of the Ld. CJM/Hailakandi, on 19.05.09, PW 1 alongwith
8
Prabir Rai and CT/J U Khan re-seized the CST 9 Pots and case documents from
Panchgram Police O.P. PW 1 also stated that he signed the re-seizure list as
well as card label.
11. PW 1 in his cross examination stated that 19.05.09, he alongwith Prabir Rai
attented Panchgram Police O.P for re-seizing the seized CST 9 Pots. PW 1
stated that there was no independent witness during re-seizure. PW 1 stated
that he has re-seized vehicle alngwith relevant documents. PW 1 stated that at
about 10:15 hours, Prabir Rai re-seized the materials. PW 1 also stated that he
does not know the accused persons prior to this case.
12. PW 1, the complainant deposed that he was present during the Naka Checking
on 07.05.2009 at about 07:30 pm at Dholeswari Tri Junction. This statement of
PW 1 has not been corroborated elsewhere in this case. PW 6, the seizing
officer also did not mention regarding the presence of PW 1 on the spot at that
time. Neither the ejahar (Ext. 15) nor the Seizure List (Ext. 4) bears the
mention of PW 1, which is likely in the event of such presence. Also, the
presence of a lone RPF officer at a police Naka Checking on a road and which
is not within the Railway premises in the aforesaid circumstance has to be seen
with suspicion and cannot be accepted at this stage and more so in the
absence of any GD entry of Station Diary entry of the concerned RPF officer.
Now, on perusal of the prayer made by the IPF/RPF/BPB to the Ld.
CJM/Hailakandi for transfer of enquiry of Algapur Case No. 81/09 (instant case)
to the RPF/BPB, it is clearly stated therein that only on 09.05.09, (date of
alleged recovery and seizure being 07.05.09) a source information was
9
received regarding recovery of stolen railway materials from a Maruti car on
07.05.09 by i/c, Panchgram O.P. Therefore, I have no hesitation in forming an
opinion that PW 1 has deposed falsely regarding his involvement/presence in
the Naka Checking on 07.05.2009 at about 07:30 pm at Dholeswari Tri
Junction. Also PW 1 deposed that he has seen 02 persons in the said car – the
driver as well as another person and that after recovery of 12 nos CST 9 pots,
the driver managed to escape. This contention of PW 1 is also contrary to all
the deposition of the eye-witnesses who were reported to be present at the
time of seizure. Hence, evidence rendered by PW 1, in my opinion, cannot be
taken into consideration in this case as being contradictory from all quarters.
13. PW 2 in his evidence deposed that on 19.05.09, PW 2 alongwith ASI/R C Pal
and ASI/Prabir Rai proceeded to Panchgram Police Out Post at the direction of
IPF/RPF/BPB to take over the case docket and seized materials of the instant
case, initially registered by Police. On reaching, ASI/Dipankar Rai Choudhury
handed over 12 nos seized CST 9 Pots, one MAruti car bearing registration No.
AS 10/5395 as well as case docket which were re-seized by ASI/RPF/Prabir Rai
vide a re-seizure list signed by PW 2 and ASI/R C Pal. PW 2 also deposed that
ASI/R C Pal lodged a complaint before the IPF/RPF/BPB. Statement of PW 2
was recorded on 20.05.09 by ASI/RPF/Prabir Rai. In his cross examination, PW
2 deposed that at the time of re-seizure, there was no independent witness.
14. PW 7 deposed that on 06.05.09 at the direction of SSE/P-Way/BPB, PW 7
alongwith ASI/RPF/Prabir Rai proceeded to KM No. 09/0-1 between Panchgram
and Katakhal and on conducting joint verification found a stack of CST 9 Pot
10
missing kept by them previous day. PW 7 on 02.06.09 at the requisition of RPF,
examined the 12 nos seized CST 9 Pots and opined that the materials are
exclusively Railway property and used in Indian Railways and accordingly
issued an Expert certificate (Ext.-7) stating the same. In his cross examination,
PW 7 stated that there is over-writing and correction in the date mentioned in
Ext 7, Expert certificate and that PW 7 has no idea regarding the theft of CST 9
pots.
15. Considering the nature of seized goods, expert certificate as well as deposition
of PW 7, it can be said that the materials in issue are Railway property and
hence issue no. (ii) Whether the seized materials are railway property is
accordingly answered in the affirmative and in favour of the Railways.
16. PW 5 deposed that on 01.06.09 RPF personnel proceeded to Hailakandi Jail in
his vehicle and brought one accused person to RPF/POST/BPB from the jail,
whose name is Fakar Uddin. PW 5 stated that accused Fakar Uddin confessed
his guilt before the RPF stating that he alongwith driver Kamal Uddin brought
some Railway materials from Janki Bazar and were apprehended by police at
Dholeswari bridge, where Kamal Uddin escaped. PW 5 signed the statement of
the accsued Fakar Uddin as a witness.
17. In his cross examination, PW 5 stated that he is driver of the vehicle used by
RPF to visit Hailakandi Jail. PW 5 stated that accused Fakar Uddin was not
warned/cautioned by the RPF personnel before recording his confessional
statement. PW 5 stated that accused stated in Bengali language but he does
11
not remember in what language/script, the said statement was recorded. PW 5
stated that he does not remember the registration no. of the vehicle.
18. Lastly, PW 9, the Enquiry Officer of the case deposed in his evidence that on
19.05.09 a complaint was lodged by ASI/R.C. Pal which was registered as a
case vide RPF/BPB/Case No. 1(5)09 U/S 3 (a) RP (UP) Act agaist accused Fakar
Uddin and Kamal Uddin and case was endorsed to PW 9 as Enquiry Officer. PW
9 stated that he has re-seized 12 nos seized CST 9 Pots, one Maruti car bearing
registration No. AS-10/5395 as well as original seizure list from ASI/Deepankar
Rai Chowdhury. PW 9 stated that he has recorded the statement of accused
Fakar Uddin on 01.06.09 at the RPF/POST/Badarpur in presence of a local
witness namely Dilawar Hussain, wherein accused has voluntarily confessed his
guilt and also disclosed the name of the co-accused as one Kamal Uddin. PW 9
stated that he has recorded the statement of accused Kamal Uddin on 13.10.09
at the Dist. Jail at Tinsukia wherein accused person has also confessed his
guilt. PW 9 stated that the owner of the seized vehicle is Kamal Uddin as per
records collected by him. PW 9 also stated about the theft memo dt. 05.05.09
issued by SSE/P-Way/BPB and that PW 9 alongwith Aswini Kr. Borthakur (PW
7) conducted joint verification at KM No. 09/0-1 in between Panchgram and
Katakhal and found 12 nos CST 9 Pots missing from the nearby track. PW 9
also prepared a rough sketch map. At this stage, there appears a clear
contradiction between statement of PW 7 and PW 9 regarding the place from
where CST 9 pots allegedly went missing. PW 7 stated that the materials went
missing from a stack kept by them whereas PW 9 states that the materials
12
went missing from the nearby track, meaning that, in my view that materials
were taken out from beneath the track where such materials are used.
Thereafter, PW 9 on completion of enquiry submitted Prosecution Report vide P
R No. 02/2010 dated 09.02.2010 against both aforesaid accused persons U/S 3
(a) RP (UP) Act.
19. In his cross examination, PW 9 stated that he has prepared at card label at the
time of re-seizure on 19.05.09, whereas signature of accused Fakar Uddin and
Kamal Uddin were taken on 01.06.09 and 12.11.09 respectively. Kamal Uddin’s
signature on card label was taken while Kamal Uddin was in judicial custody at
Tinsukia Dist. Jail. In my opinion, this practice of obtaining signatures of
accused persons in the card label subsequently after many days might strongly
suggest chances of manipulation as well as the same is likely to cause
prejudice to the accused persons. Also, PW 9 stated that during recording of
statement of accused Kamal Uddin at the Dist. Jail, Tinsukia, there was no
witness present.
20. Heard ld. Counsels appearing for both sides at length. Ld. P.P/N F Railways
submitted that as railway property has been recovered from possession of both
accused persons, from where the driver Kamal Uddin managed to escape and
as the accused persons failed to show such possession of Railway property to
be lawful, hence both persons to be held accountable under the said provision
of law. Ld. Defence counsel appearing for both the accused persons stated that
accused Kamal Uddin was arrested after many days from his house and has
been implicated in this case solely on the basis of statement of accused Fakar
13
Uddin. Ld. Defence counsel stated that there is contradiction amongst the eye
witnesses who are seizing officer and seizure witnesses regarding the quantity
of seized materials and hence pleaded that alleged offence has not been
proved against the aforesaid accused persons. It is lastly submitted by the
defence counsel that the value of the seized property mentioned in the
Prosecution Report is Rs. 2,000/- (Rupees two thousand) only and considering
that the trail of the case is continuing since a long period of time, a lenient
view is pleaded ro be taken in the case.
21. Appreciating the entire evidence-on-record, it appears to me that accused
Fakar Uddin was found in possession of unlawful Railway materials suspected
to be stolen property while he was in vehicle No. AS-10/5395. All the eye-
witnesses including the seizing officer have identified accused Fakar Uddin. The
said vehicle is owned by accused Kamal Uddin. Kamal Uddin stated in his
statement in defence U/S 313 Cr P C that he was not driving the vehicle and it
was being driven by a driver namely, Swapan Das of Tripura. This plea seems
to be unacceptable as accused Kamal Uddin could not give any substantial
details of the so called Swapan Das. The circumstantial evidence suggests that
another person, who was driving the said car absconded from the place leaving
the car. Also the statement of accused Fakar Uddin indicates that Kamal Uddin
was driving the vehicle and he escaped after bypassing the Naka Checking.
Therefore, though there is lack of material evidence showing involvement of
accused Kamal Uddin in this case, yet, in my opinion, circumstantial evidence
does strongly suggest otherwise.
14
22. Accordingly, issue no. (i) Whether the accused Fakar Uddin and Kamal Uddin
committed theft or have been in possession of railway property suspected to
be stolen materials or unlawfully obtained and (iii) Whether the accused
persons are guilty of the offence charged is cumulatively answered in the
affirmative and in favour of the prosecution.
23. This Court has also given due consideration as to whether the provisions of the
Probation of Offenders Act, 1958 can be applicable in the instant case, but
from the conduct and overall circumstances that has come out from the
evidence on record, this Court is of the opinion that this is not a fit case to
release the accused persons under the Act of 1958 as the accused persons
were found in unlawful possession of exclusive stolen railway materials.
24. Later on, also heard both the accused persons, Fakar Uddin and Kamal Uddin
on the question of sentence. Accused pleaded clemency as being the first and
only offence ever committed by them and that they had no malafide intention
and also have assured that henceforth they will never commit any offence. On
being asked, both accused stated that they are the sole bread winner for their
respective families and hence prayed for leniency and apologetic. Both accused
persons stated that they belong to weaker economic strata of the society and
that both of them have large families to support, financially and otherwise.
Both accused persons also pleaded that they may be treated with leniency on
account of the attending circumstances and that their family would face
starvation if they are sent to jail. The ld. Defence counsel pleaded that the
instant offence being the first ever offence of the accused persons and that the
15
value of the seized materials being at Rs. 2,000/- only, accused persons may
be treated with leniency. Therefore, considering the nature and gravity of the
offence and the age and character/antecedent of the offender, this Court
passes the following Order in this case.
O R D E R
25. Accused (1) Fakar Uddin and (2) Kamal Uddin stand convicted in this case on
being found guilty of the offence U/S 3 (a) of The Railway Property (Unlawful
Possession) Act, 1966 charged against them.
26. Hence, both the accused persons are hereby sentenced to undergo Simple
Imprisonment for a period of 01 (one) month each.
27. Sentence of imprisonment has been awarded leniently in this case considering
the prayer for clemency pleaded by the accused persons for reasons
aforementioned.
28. The period of detention, if any, already undergone by the accused persons to
be set off in accordance with Section 428 Cr. P. C. against the imprisonment
awarded in this case.
29. Seized railway materials to be handed over to the concerned Railway authority
following due process of law.
30. The judgement is pronounced in open Court and in the presence of the ld.
counsels.
16
31. Let a free copy of the Judgement and Order be furnished to the accused.
32. With the above observations and directions, the case is disposed off against
both aforesaid accused persons.
Bail bond, if any, shall remain in force for a period 06 months as specified
under provisions of law.
Given under my hand and seal of this court on this the 11th day of, September,
2015.
(A.A. Choudhury) Special Railway Magistrate,
Tinsukia
17
A P P E N D I X
Prosecution Witnesses:
1. PW 1 – Rakhal Ch Pal, ASI/RPF/BPB.
2. PW 2 – Jahar Uddin Khan, CT/RPF/BPB.
3. PW 3 – Phool Kishore Das, Casual labourer.
4. PW 4 – Debi Prasad Tiwari, driver.
5. PW 5 – Dilawar Hussain, Driver.
6. PW 6 – Dipankar Rai Chowdhury, ASI/Assam Police/Panchgram O.P.
7. PW 7 – Aswini Kr. Borthakur, Sr. P-Way supervisor/LMG.
8. PW 8 – Rafiqul Haque, shop-keeper.
9. PW 9 – Prabir Rai, ASI/RPF/SCL.
Prosecution Documents/Exhibits:
1. Ext. 1 – Complaint dated 19.05.09
2. Ext. 2 – Re-Seizure List.
3. Ext. 3 – Card Label
4. Ext. 4 – Seizure List.
18
5. Ext. 5 – Statement of accused Fakar Uddin.
6. Ext. 6 – Joint verification Report.
7. Ext. 7 – Expert Opinion certificate.
8. Ext. 8 – Statement of accused Kamal Uddin.
9. Ext. 9 – Rough Sketch Map.
10. Ext. 10 – Missing memo dt. 05.05.09 from SSE/P Way/BPB to IPF/BPB.
11. Ext. 11 – Seizure List
12. Ext. 12 – Zimma Nama.
13. Ext. 13 – Prosecution Report.
14. Ext. 14 – Accused forwarding to Ld. CJM/Hailakandi dt. 08.05.09.
15. Ext. 15 – Ejahar dt. 07.05.09
16. Ext. 16 – F.I.R. dated 08.05.09
Court Witness: NIL
Defence Witness: NIL
Defence Evidence: NIL
(A.A. Choudhury) Special Railway Magistrate,
Tinsukia