Judgment 1. This application in revision by the two petitioners is directed against their conviction and sentence as concurrently recorded in the two courts below. Both of them have been convicted under Sections 411 of the Indian Penal Code and 3 of the Railway Stores (Unlawful Possession) Act, 1955. Their sentences under Sec. 411, Indian Penal Code consist of two years rigorous imprisonment each. No separate sentence has been awarded under Sec.3 of the Railway Stores (Unlawful Possession) Act. 2. The case against the petitioners is that on 15-3-1965 at about 7 P.M. when the Railway Khalasi Jagdambi Mistri (P.W. 1) was passing on the way he met with Bhola Mistri and both of them started going together. When they reached near the railway line they heard both these petitioners going with bundles. A bundle in a bag which was being carried by petitioner Gopal was kept on the carrier of his cycle with which he was moving on foot. The other petitioner Asharfi had the bundle tied in loongi on his head. Because of the jingling sound produced from the bundles kept on the carrier of the cycle they got suspicious and caught hold of the accused persons with those bundles. They discovered that in those bundles they were taking away bearing plates of the railway. Thereafter P.W. 1 (Jagdambi) took both of them along with those bundles and the cycle to the Railway Public Works Inspector (P.W. 3). The latter forwarded both the accused persons along with those articles and the cycle to the Railway Police Station at Barauni along with his report. There the police registered a case against them and took up investigation which being completed, charge-sheet under Sections 379/411 of the Indian Penal Code and Sec.3 of the Railway Stores (Unlawful Possession) Act was submitted. 3. During the trial the Magistrate held them guilty and sentenced them for the offences stated above. Their appeal against that also failed. Thereafter, this revision. 4. In the defence, they denied to have committed the offence; they claimed that they had been carrying those bundles which had been made over to them by the chaukidar of the railway stores Ram Kripal to be handed over to his brother and they had no knowledge what the bundles contained. To support this they examined two witnesses, D.Ws. 1 and 2. Both the courts below, however, disbelieved the defence so set up. To support this they examined two witnesses, D.Ws. 1 and 2. Both the courts below, however, disbelieved the defence so set up. 5. Mr. Shyama Prasad Mukherji appearing for the petitioners has urged that the prosecution has utterly failed to prove conclusively that those bearing plates were stolen railway property and that the accused had knowledge or reasonable suspicion that they were such property. Because of these infirmities, according to him their conviction cannot be sustained and must be quashed. To support this view he has relied upon the Supreme Court decision in Kashmirilal V/s. State of Uttar Pradesh, AIR 1970 SC 1868 : (1970 Cri LJ 1647). 6. After having heard learned Counsel for the petitioners and the State as also looked into the relevant evidence on this point. I am unable to uphold this contention of Mr. Mukherji. In his evidence, Jagdambi Mistri (P.W. 1), the railway khalasi, who had detected this offence, stated that the bearing plates as found being carried by the two accused persons in bundles, by one on the carrier of his cycle and the other on his head, were property of the railway due to which he arrested both of them and took them with those articles to the Railway Public Works Inspector (P.W. 3). According to the latter (P.W. 3), on that day, i.e. 15-3-1965, at 7.30 P.M. he was informed by Jagdambi that a theft has been committed in the railway stores at that place and that two persons have been arrested with those bearing plates. His (P.W. 3s) further statement is that he (P.W. 1) had produced before him at that time these two accused persons along with 15 bearing plates (Ext. I series) and a cycle (Ext. II). These bearing plates were identified by him (P.W. 3) to be the property of the railway on which the railway marks in the form of letter R have been inscribed. He (P.W. 3) further stated that those bearing plates are used only in the railway works and they are called canted bearing plates. He (P.W. 3) further indicated that the concerned railway stores from which these plates are said to have been removed by the accused persons was sufficiently big located in open and had ordinary wooden fencing. He (P.W. 3) further stated that those bearing plates are used only in the railway works and they are called canted bearing plates. He (P.W. 3) further indicated that the concerned railway stores from which these plates are said to have been removed by the accused persons was sufficiently big located in open and had ordinary wooden fencing. No suggestion was made to him (P.W. 3) in his cross-examination that these plates had become unserviceable and could not be put to any use in the railway. As it appears, his (P.W. 3s) evidence in chief that these bearing plates are the property of the railway and are used only in the railway works has not even been challenged in his cross-examination by the other side. 7. On a consideration of the above prosecution evidence and the unassailable nature thereof it cannot be denied that the prosecution has established the fact of these plates as recovered from the possession of the petitioners when they were carrying them away in the above manner are railway property within the meaning of its definition as given in Sec.2(d) of the aforesaid Railway Stores (Unlawful Possession) Act. 8. In view of what I have said above about the character of this property, the aforesaid Supreme Court authority can well be taken to be helpful to the prosecution instead of defence. It has decided that before any one can be charged with the offence under Sec.3 of the Railway Stores (Unlawful Possession) Act it must be shown that he was in possession of the railway stores which by the definition of the section does not include all articles which are the property of a railway administration but only those which are used or intended to be used in the construction, operation or maintenance of a railway; mere being property of any railway administration is not an offence and the prosecution must prove that the articles were being used or were intended to be used for by the railway. It has further held that any articles which are property of railway administration but which have been discarded or rejected for further use would be outside the definition of the railway stores; if the railway administration has no further use of them, be they new or old as in the case where they have become unserviceable or outmoded, no person can be charged with an offence under Sec.3 in respect thereof. In the instant case, as I have shown above there, is no such suggestion that the bearing plates so recovered from the possession of these petitioners were all old and had been discarded or rejected for further use by the railway. On the other hand, the clear evidence of the Railway Public Works Inspector (P.W. 3), who has to be taken as a very competent witness to depose on this point, is that all these bearing plates are used only in the works of the railway and are called canted bearing plates. 9. In the evidence adduced by the prosecution, it appears to have been fully established that these accused persons were at the time of their arrest found to be in possession of there railway properties which can be reasonably suspected of having been stolen or unlawfully obtained from the railway stores there. That being the position, they can well be taken to have brought themselves within the purview of Sec.3(ibid) unless they could show that they had come into its possession as alleged by them. This onus, however, they did not discharge at all by any reliable evidence. The defence sought to be proved by the testimony of the two witnesses. D.Ws. 1 and 2, that they had no knowledge of the contents of these bundles and had been carrying them as made over to them by the railway chaukidar Ram Kripal to be handed over to his (Ram Kripals) brother has been disbelieved as false by the two courts below by giving reasons therefor in which I find no manifest mistake. 10. Another contention addressed by Mr. Mukherji is regarding the non-examination of some witnesses like Niras Jha, constable, the aforesaid Bhola Mistri and the investigating officer. According to him, all these persons were very material witnesses in the case and due to their non-examination the petitioners have been very seriously prejudiced. 10. Another contention addressed by Mr. Mukherji is regarding the non-examination of some witnesses like Niras Jha, constable, the aforesaid Bhola Mistri and the investigating officer. According to him, all these persons were very material witnesses in the case and due to their non-examination the petitioners have been very seriously prejudiced. No doubt, the names of both these persons (Bhola Mistri and Niras Jha, constable) find place in the charge-sheet. Though the investigation had not been examined but the first information report (Ext. 1), as recorded by him has been brought on the record having been proved by the constable (P.W. 5). Mr. Mukherji has not, however, been able to show to me by reference to any relevant material as to how on account of their absence from the witness-box his clients have felt prejudiced. It is not known on what point this constable Niras Jha was to depose. Bhola Mistry could have been, at the most, brought before the Court to support the above railway khalasi Jagdambi Mistri (P.W. 1) because he (Bhola) is also said to be present with him at the time of the arrest of the accused persons with these articles. As his (P.W. 1s) evidence stands this Bhola except that he is said to have been present at that time, does not seem to have played any important role in the matter. Accordingly, when the prosecution has brought this Jagdambi (P.W. 1), who can be said to be the main man on this point, absence of Bhola from the witness-box cannot be regarded to be of any material consequence. As regards the investigating officer also, it has not been possible for the petitioner to show that due to his absence from the Court some material contradictions in the evidence of these prosecution witnesses as given to him (investigating officer) during investigation has not been brought on the record from their side. In such circumstances, his absence from the witness-box also does not deserve to be given any undue importance in the case. If the petitioners had any such contradictions in their possession so as to bring them to the notice of the Court, which they could not bring forth in his (Investigating Officers) absence from the witness-box they could have well insisted upon his examination. But nothing like this appears to have been done. If the petitioners had any such contradictions in their possession so as to bring them to the notice of the Court, which they could not bring forth in his (Investigating Officers) absence from the witness-box they could have well insisted upon his examination. But nothing like this appears to have been done. On a consideration of all these facts, I am unable to read any prejudice against the petitioners in the case resulting from the absence of examination of these persons during the trial. 11. The findings of the two courts below on the point of conviction for this offence as they have been recorded on the basis of materials on records appear to be in order. Similarly, their sentence of two years rigorous imprisonment, regard being had to the serious nature of the offence, also cannot be regarded to be in any way severe or unreasonable. 12. For the above reasons. I find no merit in this application, which must, therefore, fail. It is, accordingly dismissed.