JUDGMENT : M. P. Singh, J. - The petitioner Radha Yadav along with one Md. Muslim (Since acquitted) was seen carrying an iron rod on 9th February, 1976 at about 6 A. M. from M. G. Loco shed of Katihar. He was, therefore, prosecuted under section 3 of the Railway Property (Unlawful Possession) Act, 1966. He was sentenced to one year's rigorous imprisonment under that count by the trying Magistrate. His appeal was dismissed by the Sessions Judge, Katihar. 2. The learned counsel appearing for the petitioner contends that there is no evidence on record to prove that the iron rod was the Railway property, hence the conviction and sentence should not be sustained. In my opinion, his contention is of substance. The lower appellate court itself has observed in paragraph 5 of the JUDGMENT : that there is no evidence oral or documentary to prove that the iron rod was the property of the Railway. It, however, observed that the iron rod was being brought from the M. G. Locoshed of Katihar and the accused were arrested within the Locoshed area and there being no other claimant, it will be taken to be granted, that the property belonged to the Railway. In my opinion, his view cannot be sustained in law. It may be the Railway property or it may not be. The accused cannot be convicted on surmises or conjecture. I am or the view that the prosecution was bound to prove as a fact by reliable evidence that the property belonged to the Railway administration. In this case, there is complete lack of evidence on the point as observed by the court or appeal below itself. Learned counsel appearing for the State has supported the view taken by the lower appellate Court. His contention is that the property was being brought from the Locoshed and the accused was caught inside that area and, therefore, it will be presumed that the property belonged to the Railway administration. I have already said that the accused cannot be convicted on conjecture. The matter had to be proved as a fact. Under the circumstances, I think that the conviction and sentence recorded against the petitioner cannot be sustained in law. 3. The revision petition is allowed. The conviction and sentence are set aside and the petitioner is acquitted.