JUDGMENT C. P. SINGH. J 1. This appeal by the State is directed against the judgment of the Fifth Additional Sessions Judge, Jabalpur, in Criminal Appeal No.146 of 1971 allowing the appeal of the respondent Chandansingh and setting aside his conviction, under section 3 of the Railway Property (Unlawful Possession) Act, 1966 for unlawfully possessing an injector steam cone and a restarting cone of the Railway Engine No.7048 and a sentence of Rs.300/- fine or rigorous imprisonment for 3 months in the event of nonpayment of the imposed fine. 2. The material facts for the decision of this appeal, in short, are that on 17-6-1970 at about 8.45 a.m., H. S. Mishra (PW 4) who was a fitter at Jabalpur Loco-shed found that a steam cone and a restarting cone of the Railway Engine No. 7048 were missing. He reported the matter in writing (Ex. P-1) to the Railway Protection Force, Post Jabalpur. 3. The day following the accused-respondent Chandansingh was interrogated and during the course of his interrogation he not only confessed his having stolen the two articles from the Railway Engine No.7048 with a view to selling them later on in the market, but also in the meantime having concealed them near the boundary wall of the Railway Sports ground. Mr. R. Roy (PW 1) drew the memorandum (Ex. P-2) in the presence of Shaukatali (PW 3) and Santosh Singh (PW 5) regarding the accused-respondent Chandansingh having concealed the two articles near the boundary wall of the local Railway Sports ground and pursuant to it through the instrumentality of the accused the two articles (Art, A the injector steam cone and Art B the restarting cone) came to be discovered and seized evidencing which Mr. Roy prepared the memoranda (Ex. P-3 and Ex. P-4, respectively). On examination Mr. C. B. Parashar (PW 2) found these articles to be belonging to the Railways. 4. On these facts when prosecuted before the Special Magistrate First Class, Jabalpur, under section 3 of the Railway Property (Unlawful Possession) Act, 1966, the accused-respondent without challenging that the two articles had belonged to the Railways, claimed that he had been falsly implicated because of his earlier quarrel with the foreman over a wrongly prepared payroll. 5. 4. On these facts when prosecuted before the Special Magistrate First Class, Jabalpur, under section 3 of the Railway Property (Unlawful Possession) Act, 1966, the accused-respondent without challenging that the two articles had belonged to the Railways, claimed that he had been falsly implicated because of his earlier quarrel with the foreman over a wrongly prepared payroll. 5. The Special Magistrate relying on the confession of the accused-respondent before Mr R. Roy (PW 1) and the discovery of the two articles at the instance of the accused disbelieving his defence finding him guilty of the offence charged came to sentence him with a fine of Rs.300/- or in the event of non-payment of fine, rigorous imprisonment for 3 months. 6. The convicted accused Chandansingh successfully appealed to the Fifth Additional Sessions Judge, Jabalpur, It is now the State who appeals against that judgment of the Fifth Additional Sessions Judge. 7. The only question for decision by us in this appeal is whether the accused-respondent Chandansingh has been rightly acquitted of unlawfully possessing an injector steam cone and a restarting cone belonging to the Railways an offence punishable under section 3 of the Railway Property (Unlawful Possession) Act. 8. On hearing Mr. M. V. Tamaskar, learned Government Advocate for the State and Mr. L. N. Sanghi, learned counsel for the respondent; we find that there being no force in this appeal the respondent Chandansingh has been rightly acquitted of the offence charged. 9. As regards the confession of the respondent Chandansingh, a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making if he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him (section 24 of the Indian Evidence Act). 10 Mr. R. Roy (PW 1) admittedly was a prosecutor in this case and hence a person in authority. He undoubtedly had the accused in his custody. The onus of proving that the confession was voluntary therefore lay upon him. There is not even a word in Mr. 10 Mr. R. Roy (PW 1) admittedly was a prosecutor in this case and hence a person in authority. He undoubtedly had the accused in his custody. The onus of proving that the confession was voluntary therefore lay upon him. There is not even a word in Mr. R. Roy (PW 1) evidence that the accused Chandansingh had made the confession voluntarily. In order to make a confession made before a person in authority relevant the prosecution has to cross the initial hurdle of proving that it was voluntary and to found a conviction on it to cross yet another hurdle of proving that it was true. In the absence of the prosecution having proved that the accused-respondent had made a confession voluntarily-before Mr. R. Roy (PW 1) who had recorded it remains irrelevant and cannot be used against him. Moreover this extra-judicial confession Contained in the document in Ex. P-5 docs not have the signatures of the witnesses before whom it is alleged to have been made. 11. As regards the alleged discovery of the two articles pursuant to information furnished by the accused respondent admittedly the two articles were recovered near the boundary wall of the Railway Sports ground accessible to all and sundry making it difficult to hold that it was the accused to the exclusion of others who had concealed the articles there. It remains doubtful that the presence of those articles being there was peculiarly within the exclusive knowledge of the accused and not shared with others (See Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39 . 12. Mr. R. Roy (PW 1) is not a police officer and hence the proviso contained in section 27 of the Indian Evidence Act could not be availed of against the accused. The statement of the accused therefore, confessional as it is in nature, without first proving that it was voluntary cannot be used to establish the connect ion of the accused with the two articles, In other words it was necessary in these circumstances for the prosecution to prove independently that it was the accused who had concealed the articles at the place from where they were dug out later on. 13. The two articles (Art. A & Art. B) are not big enough and could easily have been concealed elsewhere not accessible-like a Sports ground-to the public at large. 13. The two articles (Art. A & Art. B) are not big enough and could easily have been concealed elsewhere not accessible-like a Sports ground-to the public at large. These articles are not available in the market (See Para 2 of C. B. Parasar P.W. 2's evidence) and hence the accused in the absence of a ready market apparently had no use for them, they being, as noted by the learned Additional Sessions Judge, only scraps. 14. A witness is not necessarily hostile because in the process of unfolding the truth he happens to depose some-thing going against the party calling him as a witness. A witness's primary allegiance is to the truth and not to the party calling him. Before a Court allows a party calling a witness to put to him questions which might otherwise be put only in cross-examination by the adverse party, it (the Court should mark the conduct, including attitude, deameanour, unwillingness to give ready answers or to disclose the truth or exhibit hostile or unfriendly feelings and the like, of the witness. An unhealthy practice, almost irretrievable by now, has grown up to label the evidence of a witness as 'cross-examination" after the Court has in its discretion permitted the party calling a witness to put to him questions which might be put in cross-examination. Strictly speaking section 154 of the Indian Evidence Act docs not lay down that a party calling a witness can also cross-examine him, it merely says that the Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross examination by the adverse party. "Cross-examination" is the right of the adverse party. The examination of a witness by the party who calls him is called his examination in chief, (and it remains his examination in-chief even inspite of his having been asked questions by the party calling him, which otherwise could be asked only in cross-examination by the adverse party (Sec. 137, I Clause). It is only the examination by the adverse party which is called his cross-examination (Sec. 137. II Clause). 15. Then according to the terms of section 138 of the Indian Evidence Act a witness is first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. It is only the examination by the adverse party which is called his cross-examination (Sec. 137. II Clause). 15. Then according to the terms of section 138 of the Indian Evidence Act a witness is first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. It would therefore be readily seen that there is no scope for labeling a part of examination-in-chief of a witness as cross-examination 16. Santosh Singh (PW 3) is such a witness whose part of the examination-in-chief has been labeled as cross-examination. There is nothing on record to show what led the learned Magistrate to allow the party calling Santosh Singh (PW 3) as a witness to put to him questions in nature of cross-examination. To us he appears to be a truthful witness. He has been rightly preferred to Saukatali (PW 3) by the learned Additional Sessions Judge as in his opinion the presence of Shaukatali considering that he was on duty, appeared improbable. According to Santosh Singh (PW 5) it was not at the instance of the accused that the two articles had been seized. 17. In the foregoing circumstances considering that in the absence of the signatures of other two witnesses it is doubtful that the accused-respondent had made a confession before Mr. R. Roy (PW 1) who being a prosecutor was a person in authority or that of the confession was made it was voluntary And that the two articles had been discovered at the instance of the accused it is likely that the accused-respondent had come to be falsely implicated for the offence charged. We concurring with the findings of the learned Additional Sessions Judge, find no force in this appeal and dismiss it. N. C. DWIVEDI, J 18. I have had the advantage of perusing the judgment prepared by my brother C.P. Singh, J. but I regret that I am unable to agree with the views expressed by him. 19. In this appeal, the State of Madhya Pradesh has challenged the order of acquittal of the respondent Chandansingh under section 3 of the Railway Property (Unlawful Possession) Act, 1966, recorded by the Fifth Additional Sessions Judge, Jabalpur in Criminal Appeal No.146 of 1971 decided on August 9, 1971. 20. The facts of this case have been stated in paragraphs 2 and 3 of the judgment of my brother. 20. The facts of this case have been stated in paragraphs 2 and 3 of the judgment of my brother. On June 17, 1970, H. S. Mishra (PW 4) found a steam cone and a restarting cone of the Railway Engine No.7048 missing about which he lodged a report (Ex. P.1) with the Railway Protection Force Jabalpur. On June 18, 1970, the respondent was interrogated. As per memorandum (Ex. P-2), he gave a statement that he had buried the articles near the wall of the railway ground which he would discover. In consequence of this information, the respondent, after digging six inches of the ground, produced the two articles which were seized from him as per seizure memoranda (Exs. P-3 and P-4) C. B. Parashar (PW 2) found these articles to be railway property. On June 18, 1970 the respondent made a statement (Ex. P-5) to R. Roy (PW 1), Sub-Inspector, Railway Protection Force, Jabalpur which was signed by him. 21. The respondent admitted that the two articles were the railway property. He also admitted that he was called by the Railway Protection Force and was interrogated. He denied that he had given any information or that any articles were recovered in consequence thereof. He denied that he had made the statement (Ex. P-5) to R. Roy (PW 1). He pleaded false implication by his officer in respect of payment because he complained to the Divisional Superintendent. 22. The Magistrate, First Class, Jabalpur, by his judgment dated July 16, 1971, convicted the respondent on the following findings:- (i) That the injector cone (Article A) and the restarting cone (Article B) were recovered on the basis of the information supplied by the respondent vide Ex. P-2 and they were seized at the instance of the respondent vide memo. Ex. P-3; (Para 4 of the judgment). (ii) That the respondent gave a statement (Ex. P-5) duly signed by him which would be admissible because an officer of the Rail way Protection Force is not a police officer within the meaning of section 25 of the Evidence Act. Thus, the statement (Ex. P-5) is admissible and fully corroborates the testimony of Roy (PW 1) and Shaukat Ali (PW 3); (Para 6 of judgment). (iii) That in absence of any explanation, the reasonable inference would be that the respondent put those articles and burried them at the railway ground; (Para 7 of the judgment). Thus, the statement (Ex. P-5) is admissible and fully corroborates the testimony of Roy (PW 1) and Shaukat Ali (PW 3); (Para 6 of judgment). (iii) That in absence of any explanation, the reasonable inference would be that the respondent put those articles and burried them at the railway ground; (Para 7 of the judgment). (iv) That the evidence conclusively proves that articles A and Bare railway property; (Para 8 of the judgment) (v) That these two items belonging to the railways were recovered from the possession of the respondent. (Para 10 of the judgment). 23. The Additional Sessions Judge held:- (i) That the documents, Ex. P-2, P-3 and P-4 together with the testimony of Roy (PW 1) and Shaukatali (PW 3), even if, accepted at their face: value, show only this much that the two articles were recovered from open ground at the instance of the respondent (Para 7 of the Add. Sessions Judge's judgment); (ii) That Roy (PW 1) is not a police officer and the confession, therefore, be admissible in evidence (Para 9 of the Add. Sessions Judge's judgment); (iii) That this admission was retracted and since it was not signed by witnesses, it was not prudent to rely on such piece of extra-judicial confession (Para 9 of the Addl. Sessions Judge's judgment); (iv) That it does not stand to reason that the respondent if he had taken them would keep them in open ground instead of forthwith disposing them of in the market (Para 9 of Addl. Sessions Judge’s judgment). On the above findings, the conviction of the respondent under section 3 of the Railway Property (Unlawful Possession) Act, 1966 was set aside. The State being aggrieved has challenged this acquittal before us. 24. The point for decision in this appeal is whether the respondent was found in possession of the railway property. 25. I have considered the submission of Shri M. V. Tamaskar, Government Advocate and Shri L. N. Sanghi, Advocate for the respondent and I am of the view that the order of acquittal is unwarranted. 26. The prosecution depends for its success on two circumstances-(i) the statement made by the respondent (Ex. P-5) admitting that he had removed the two articles and kept them hidden and (ii) the discovery of the two articles at the instance of the respondent. 27. I will take up the question of respondent's statement (Ex P-5). 26. The prosecution depends for its success on two circumstances-(i) the statement made by the respondent (Ex. P-5) admitting that he had removed the two articles and kept them hidden and (ii) the discovery of the two articles at the instance of the respondent. 27. I will take up the question of respondent's statement (Ex P-5). This aspect has been dealt with by my brother in paragraphs 9 and 10 of his judgment where he observed that there was no proof that this statement was made voluntarily. Before quoting the law on this point, I will discuss the evidence. 28. Exhibit P-5 was recorded on June 18, 1970 by Sub-Inspector Roy (PW 1). It is signed and dated, by the respondent himself who admitted it to be correct. Sub-Inspector Roy was not at all questioned whether Ex. P-5 was given voluntarily or not. Thus, the respondent did not make any suggestion to Sub-Inspector Roy that the statement (Exhibit P-5) was obtained by him by threat or inducement or pressure. In the absence of any I suggestion from the respondent on this point, normal presumption will be that Roy (PW 1) being a public servant acted in accordance with law and, therefore, in the evidence of Sub-Inspector Roy, there is no material to hold that Exhibit P-5 was not voluntary. 29. The appellant was examined under section 342 of the Code of Criminal Procedure. He admitted that he was questioned by the Sub-Inspector Roy. He was particularly questioned about Exhibit P-5 but he denied his having made that statement or his having signed the same. In his statement also he did not allege that he had given this statement under duress. In latter part of his examination, he was questioned about the contents of Exhibit P-5 but he again denied it. 30. It is therefore, apparent that neither in the prosecution evidence nor in the examination of the respondent, there is any material to hold that the statement (Ex. P-5) was not volutary. The absence of signature of the witness on Exhibit P-5 will not make any difference regarding valuntary nature of the statement because the statement was read over to him and admitted by him to be correct, besides he signed and dated it. On facts, therefore, I am firmly of the view that Exhibit P-5 was a voluntary statement and could be used against the respondent. On facts, therefore, I am firmly of the view that Exhibit P-5 was a voluntary statement and could be used against the respondent. I will now state the law on this point. 31. In a number of cases, it has been held that officers of the custom and excise departments are not police officers. (See Veera Ibrahim v. The State of Maharashtra AIR 1976 SC 116, Hazari Singh v. Union of India and others AIR 1973 SC 62 , Harbansingh Sardar Lenasingh and another v. The State of Maharashtra and another AIR 1972 SC 1224 , Perey Rustomji Basta v. The State of Maharashtra AIR 1971 SC 1087 , Ramesh Chanara Mehta v. The State of West Bengal AIR 1970 SC 940 , Badaku Joti Syant v State of Mysore AIR 1966 SC 1746 , Soni Vallabhdas Liladhar and another v Asstt. Collector of Customs AIR 1965 SC 481 and State of Punjab v. Barkat Ram AIR 1962 SC 276 and State of M.P. v. Basantilal 1975 MPLJ Short Note 9 = 1975 JLJ Short Note 3. On the basis of above rulings, it could be held that the officers of the customs and excise departments are not police officers and confessional statements made to them are not bit by sections 24 and 25 of the Evidence Act. 32. Regarding Sub-Inspector of the Railway Protection Force, it has been held that he is not a police officer. See Badri Vishal and another v. State of Madhya Pradesh 1972 JLJ 905 = 1973 MPLJ 82 and Ranjitsingh v. State of Madhya Pradesh 1973 JLJ 845 = 1973 MPLJ 663 . In view of this, any statement made to the Inspector of Railway Protection Force is not hit by section 25 of the Evidence Act. 33. Regarding the statement being voluntary there are cases to show that such confessional statements do non come within the prohibition of section 24 as well as section 25 of the Evidence Act. This is because the statement made by a person during enquiry cannot be held to be a statement made by a person accused of offence. 33. Regarding the statement being voluntary there are cases to show that such confessional statements do non come within the prohibition of section 24 as well as section 25 of the Evidence Act. This is because the statement made by a person during enquiry cannot be held to be a statement made by a person accused of offence. In Ramesh Chandra Mehta v. The State of West Bengal (supra), it was observed as under:- We may also observe that we are not concerned in these appeals to decide whether the statements relied upon were obtained from persons charged with infraction of the provisions of the Customs Act by officers having authority over them, by inducement, threat or promise having reference to the inquiry made against them. These questions, if raised, have to be decided at the trial of the appellants. 34. In Soni Vallabhdas Liladhar and another v. Asstt. Collector of Customs (supra) it is held as under:- "Where statements by the accused persons before the Customs Officers, who must be taken to be the persons in authority, were not made on account of any inducement threat or promise, they would be admissible under section 24. The statements would not be inadmissible under section 25 as Customs Officers are not Police Officers." 35. In Badaku loti Savant v. State of Mysore (supra), it is held as under:- "The statement made by an accused person to the Deputy Superintendent of Customs and Excise is not hit by section 25 of the Evidence Act and is admissible in evidence unless and otherwise the accused successfully takes advantage of section 24 of the Evidence Act. 36. In Hazari Singh v. Union of India and others (supra), it is held as under:- "Confessional statements made by accused to customs officers, they not being Police Officers, do not come within the inhibition of sections 24 and 25 of the Evidence Act." 37. In view of the law as stated above such confessional statements do not come within the inhibition of sections 24 and 25 of the Evidence Act. Even if, it is held that section 24 of the Evidence Act is applicable then they have to be considered in the light of the evidence adduced whether inducement, threat or promise was made to the person concerned during the enquiry I find no such evidence in this case. Even if, it is held that section 24 of the Evidence Act is applicable then they have to be considered in the light of the evidence adduced whether inducement, threat or promise was made to the person concerned during the enquiry I find no such evidence in this case. Therefore, it could not be held that the statement (Ex. P-5) was not voluntary. 38. It will be pertinent to mention here that the respondent did not urge before the Courts below that the statement (Ex. P-5) was procured from him by inducement, threat or promise. Even in the memorandum of appeal before the Addl. Sessions Judge. Jabalpur no such ground was taken. The Magistrate concerned in paragraph 6 of his judgment observed that "in the absence of any evidence, it cannot lead us to this conclusion that he has not made it voluntarily." The Addl. Sessions Judge in paragraph 9 of his judgment observed that Roy is not a police officer and confession made to him, therefore may be admissible in evidence. He did not accept Ex. P-5 treating it as retracted judicial confession on the ground of prudence. It is, therefore, apparent that question of statement (Ex. P-5) being made under inducement, threat or promise was never raised before the Courts below and the prosecution evidence contains no material to suggest that the statement (Ex. P-5) was not voluntary. 39. Regarding the discovery of the stolen property, it was not challenged that the two articles were railway property. Before the Addl. Sessions Judge, It was urged that the articles were discovered from a play ground which was accessible to all and sundry. Reliance was placed on Trimbak v. The State of Madhya Pradesh AIR 1954 SC 39 . On this point a brief reference to the evidence would be essential. 40. The theft of these articles took place on June 17, 1970 about which the report (Ex. P-1) was lodged. The respondent was interrogated the next day, i.e., on June 18, 1970. As per memorandum (Ex. P-2), he gave the information that he had buried the articles underneath the earth near the compound wall of the railway ground. As per seizure memoranda (Ex. P-3 & P-4), these articles were seized after the respondent had dug 6 inches of earth. The respondent was interrogated the next day, i.e., on June 18, 1970. As per memorandum (Ex. P-2), he gave the information that he had buried the articles underneath the earth near the compound wall of the railway ground. As per seizure memoranda (Ex. P-3 & P-4), these articles were seized after the respondent had dug 6 inches of earth. On this point, there is the evidence of Sub-Inspector Roy (PW 1) who stated that the respondent had dug the earth and produced the articles. In Paragraph 9 of his deposition, he stated that this place was behind the house of the respondent and that he had dug out the earth and then produced the articles. 41. Shaukatali (PW 3) supported the prosecution case and stated that the respondent dug out the earth about 8" to 10" and produced the two articles A and B. There is no inconsistency in his evidence. 42. Santoshsingh (PW 3 double marking) was declared hostile. He admitted his signature on Exs. P-2, P-3 and P-4. He is an educated person and signed these documents after reading their contents. In spite of his hostility, he admitted that Roy (PW 1). Shaukatali (PW 3) and the respondent had gone to the railway play ground, though he stated that the articles were produced by the R.P.F. constable. He was confronted with his statement recorded during the enquiry (Marked as Ex. P-6 kept in B file) which he disowned. It is apparent that he was suppressing the truth and, therefore, his evidence could not be used to throw doubt on the testimonies of Sub-Inspector Roy (PW 1) and Shaukatali (PW 3) 43. The Addl. Sessions Judge rejected the evidence of discovery on the ground that the discovery was made from a place which was open and accessible to all and sundry. This is not correct. The discovery was made from a place inside the railway ground which is surrounded by walls. It is pertinent to mention here that this place was behind the house of the respondent and the articles were underneath the earth which were dug out by the respondent himself. In the memorandum (Ex. P-2), the appellant admitted that he had concealed the article. He was thus the author of concealment and there is nothing on record that he had obtained knowledge of the articles being concealed there. In the memorandum (Ex. P-2), the appellant admitted that he had concealed the article. He was thus the author of concealment and there is nothing on record that he had obtained knowledge of the articles being concealed there. It is pertinent to mention here that the theft took place on 17-6-1970 and the respondent gave information on the 18th. There was thus no time lag in between for the respondent to derive knowledge from any other quarters Trimbak v. The State of Madhya Pradesh (supra) is distinguishable. In that case the place was a field which was open and accessible to all and sundry. This is not the position here. Besides, the evidence of the prosecution witnesses, I will refer to the defence evidence. 44. Kamlakar Modak (DW 1) stated that the railway sports ground is surrounded on all sides. There is none deputed to watch the ground. He himself being a driver on duty has to be away from Jabalpur. Thus, the railway ground is surrounded by walls on all sides. Such a place could not be said to be an open and accessible to all and sundry. 45. Madraye Muchu (DW 2) admitted that the respondent is a fireman and he can visit the place where engines stand and are equipped going on lines. The respondent himself being a fireman can visit the engine shed. 46. Nathulal (DW 3) is a highly interested witness and his evidence does not establish that the respondent was falsely implicated. He admitted that he had an old acquaintance with the respondent and he visited the respondent as a friend. He testified about some threat given by the foreman to the respondent but there is no corroboration to his statement. Thus, the defence evidence also established that the railway ground has a boundary on all sides and thus, not an open and accessible place for all. The defence of the respondent that he was falsely implicated at the instance of the foreman is not supported by other reliable or independent evidence. 47. I am, therefore, of the view that the place where the two articles were discovered at the instance of the respondent, could not on any account be held to be either open or accessible to all persons. 47. I am, therefore, of the view that the place where the two articles were discovered at the instance of the respondent, could not on any account be held to be either open or accessible to all persons. Besides, the respondent being the author of concealment and having dug out the two articles from underneath the earth from the place which was behind his own house on the next day of the theft, indicated exclusive possession of the respondent and not mere knowledge of his part. 48. In view of the above facts, I am of the view that the order of acquittal recorded by the Addl. Sessions Judge is clearly erroneous. This being an appeal against the order of acquittal if two views of the evidence were possible there need not be interference in the order of acquittal as observed in Bahalsingh v State of Haryana AIR 1976 SC 2032 . But, in this case, I am or the opinion that the conclusions of the Additional Sessions Judge are unwarranted and hence the order of acquittal needs interference. 49. In view of the above, the appeal succeeds and is allowed. The order of acquittal recorded by the Fifth Additional Sessions Judge, Jabalpur, in Criminal Appeal No.146 of 1971 decided on August 9, 1971 is set aside. Instead, the order of the Magistrate together with the sentence is restored convicting the respondent under section 3 of the Railway Property (Unlawful Possession) Act, 1966 and sentencing to pay a fine of Rs.300/- or rigorous imprisonment for three months in the event of non-payment of fine. S. S. SHARMA, J 50. Respondent Chandansingh was tried for an offence under section 3 of the Railway Property (Unlawful Possession) Act, 1966 for being unlawfully in possession of some Railway property. The trial Magistrate convicted the respondent for that offence and sentenced him to a fine of Rs.300/- in default rigorous imprisonment for three months. Respondent preferred an appeal against his conviction and sentence. Fifth Additional Sessions Judge, Jabalpur, in Criminal Appeal No.146 of 1971 by his judgment dated 9-8-1971 allowed the appeal and set aside the conviction and sentence awarded to him. Aggrieved by this, the State preferred the present appeal. 51 This appeal by the State was heard by a Division Bench. Respondent preferred an appeal against his conviction and sentence. Fifth Additional Sessions Judge, Jabalpur, in Criminal Appeal No.146 of 1971 by his judgment dated 9-8-1971 allowed the appeal and set aside the conviction and sentence awarded to him. Aggrieved by this, the State preferred the present appeal. 51 This appeal by the State was heard by a Division Bench. In view of the difference of opinion, in between the learned Judges constituting the Division Bench, this appeal has been placed before me. 52. The prosecution case rested against the respondent on two types of evidence. Firstly, the confession Ex. P-5, made by the respondent to Mr. R. Roy (PW 1) and secondly, the discovery of the stolen property on an information given by the respondent. The learned Judges have diferred on the question of voluntariness of the confession Ex. P-5 as also on the question whether on the basis of the evidence regarding the discovery of seizure the respondent could be taken to be the person in possession of the alleged stolen property. 53 There is no dispute on the question that Shri R. Roy (PW 1) who was a Sub-Inspector of the Railway Protection Force, is not a police officer (See Badri Vishal another v. State of Madhya Pradesh 1972 JLJ 905 = 1973 MPLJ 82 and Ranjitsingh v. State of Madhya Pradesh 1973 JLJ 845 = 1973 MPLJ 663 , Dwivedi J, in his differing opinion has referred to various decisions of their Lordships of the Supreme Court and came to the conclusion that such confessional statemel1ts do not come within the inhibition of sections 24 and 25 of the Evidence Act and even if it is held that section 24 of the Evidence Act is applicable, then they have to be considered in the light of the evidence adduced on the question whether inducement, threat or promise was made to the person concerned during the enquiry. In fact, there does not appear to be any difference on the question of admissibility of the confessional statement Ex P-5 but the difference is only on the question of voluntariness of that statement. According to C. P. Singh, J., Mr. R. Roy (PW 1) being a prosecutor was a person in authority and the onus of proving that the Confession was voluntary lay upon him. According to C. P. Singh, J., Mr. R. Roy (PW 1) being a prosecutor was a person in authority and the onus of proving that the Confession was voluntary lay upon him. According to the learned Judge in the absence of the prosecution having proved that the accused-respondent had made a confession voluntarily before Mr. R. Roy (PW 1) who had recorded it, it remains irrelevant and cannot be used against him. Moreover, this extra judicial confession contained in the document in Ex. P-5 does not have the signatures of the witnesses before whom it is alleged to have been made.' The question whether the confession was as a result of some inducement, threat or promise is essentially a question of fact. Their Lordships of the Supreme Court in Ratan Gond v. The State of Bihar AIR 1959 SC 18 had examined a confession made by the accused before some witnesses who were Mukhia, Sarpanch and Panch of the Gram Panchayat. Their Lordships observed that we agree with Mr. Ayengar that having regard to the provisions of the Bihar Panchayat Raj Act (Bihar VIII of 1948) the aforesaid three persons can be said to be persons in authority within the meaning of S. 24. The question, however, is - are there any circumstances which tend to show that the making of the confession appears to have been caused by any inducement. threat or promise, having reference to the charge against the appellant and proceeding from anyone of the aforesaid three persons and sufficient in the opinion of the Court to give the appellant grounds which would appear to him to be reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. After their examining the evidence, Lordship held the extra judicial confession to be admissible. In Ahar Raja Khima v. State of Saurashtra AIR 1956 SC 217 their lordships have ]aid down that while the Court is considering the question whether the confession is voluntary or not the question whether it is true or false does not arise. 54. In the instant case not a question was put to Mr. R. Roy (PW 1) to show or suggest that the confession Ex. P-5 was involuntary or was the result of any threat or inducement. Even in his examination under section 342 Cr. 54. In the instant case not a question was put to Mr. R. Roy (PW 1) to show or suggest that the confession Ex. P-5 was involuntary or was the result of any threat or inducement. Even in his examination under section 342 Cr. P.C. when this Ex P-5 was put to him, he merely denied to have given that statement. No where during the trial did he make any challenge to Ex. P-5 being involuntary or suffering from any other defect so far as to be irrelevant. Even in the memo of appeal before the Court of Sessions no ground challenging the voluntariness of the statement Ex. P-5 was raised. 55. Mr. R. Roy (PW 1) in his evidence clearly stated that the accused gave the statement Ex. P-5 to him He even gave out that statement which the respondent had given to him Mr R. Roy further stated that the statement was read over to the respondent and he accepted it to be correct and thereafter signed it. By this evidence and there being no challenge to this in the cross-examination, the conclusion is irresistable that the statement Ex. P-5 was voluntary and without any threat or inducement. The burden, if any, on the prosecution stands fully dischared in view of the circumstances as they exist. In my opinion, therefore, the statement Ex. P-5 cannot be rejected as being in voluntary and is relevant and admissible in evidence. 56. The articles which have been seized are admittedly the Railway properties. These articles were recovered from a Railway Ground which according to the prosecution were buried underneath. According to the prosecution evidence, respondent had given an information to Mr. Roy (PW 1) about his having buried these articles which he would get discovered. Ex. P-2 is the memo in which that statement was recorded. Saukatali (PW 3) and Santoshsingh who also has been wrongly numbered as PW 3 are the witnesses in whose presence this statement Ex. P-2 was allegedly given. They also are the witnesses for the seizure memo Ex, P-3 of those articles. Of these witnesses Santoshsingh did not fully support the prosecution and so questions in the nature of cross-examination were put to him by the prosecutor. 57. P-2 was allegedly given. They also are the witnesses for the seizure memo Ex, P-3 of those articles. Of these witnesses Santoshsingh did not fully support the prosecution and so questions in the nature of cross-examination were put to him by the prosecutor. 57. C.P. Singh, J, is of the opinion that the statement of the accused, therefore, confessional as it is in nature, without first proving that it, was voluntary cannot be used to establish the connection of the accused with, the two articles. In at her words it was necessary in these circumstances for the prosecution to prove independently that it was the accused who had concealed the articles at the place from where they were dug out later on. He further observed that the two articles being small in size could have easily being concealed elsewhere not accessible like a Sports ground to the public at large. Learned Judge also considered that absence of a ready market for these articles, the respondent had no use for them and were mere scraps He has relied on the evidence of Santoshsingh (PW 3) in preference to that of Shaukatali at the presence of the latter was doubtful. Thus the recovery was held to be not at the instance of the respondent. 58. Dwivedi, J., after referring to the evidence of Mr. R. Roy (PW 1) Shaukatali and Santosh Singh found that Santoshsingh was suppressing the truth and his evidence cannot be used to throw doubt on the testimonies of Mr. R. Roy (PW 1) and Saukatali (PW 3) He also considered the defence evidence. The conclusion of the learned Judge is that the two articles were discovered at the instance of the respondent from a place which is not open or accessible to all persons. The respondent has been found to be the author of concealment. 59. I have been taken through the evidence of witnesses. The theft of the two articles took place on 17-6-1970. It was on 18-6-1970 that the respondent gave a statement incorporated in Ex. P-2 to the effect that he after committing the theft of those articles buried them in the Railway-ground near the wall which he would get discovered. The evidence of Mr. Roy and Saukatali fully proves that the respondent did give such a statement. The evidence of Santoshsingh also supports the fact of the respondent having given such statement to Mr. P-2 to the effect that he after committing the theft of those articles buried them in the Railway-ground near the wall which he would get discovered. The evidence of Mr. Roy and Saukatali fully proves that the respondent did give such a statement. The evidence of Santoshsingh also supports the fact of the respondent having given such statement to Mr. R. Roy. Both according to Mr. R. Roy and Shaukatali, it was the respondent who led them to a spot in the Railway-ground and from near the wall dug out those articles and handed the over to Mr. Roy. The memo in this behalf Ex. P-3 and the consequent seizure Ex. P-4 has been proved by them. Now the version of Santoshsingh with regard to this recovery and seizure is that after reaching the ground a Sainik came there and handed over some articles to respondent. Thereafter, they all returned back. This Santoshsingh in the question, put to him by the prosecutor, admitted his signatures on Ex. P-2, Ex. P-3 and Ex. P-4. He also admitted that he was an educated person. From his evidence it is clear that his version about some Sainik having handed over these articles to the respondent is an utter lie. This was not even the version of the respondent. In his examination under section 342 Cr. P.C. no such suggestions appear to have been made even to Mr. R. Roy (PW 1) and Shaukatali (PW 3) in their respective cross-examination. I am therefore, of the view that from the evidence of Mr. R. Roy (PW 1) and Shaukatali (PW 3) it is abundantly proved beyond doubt that it was the respondent who gave the statement Ex. P-2 in consequence of which the respondent dug-out the two articles in question which were burrid underneath the earied and were thereafter sized. 60. These properties were recovered buried underneath the earth from near the wall of the Railway Sports ground this is just behind the house of the respondent. It has also been abundantly made out from the evidence that these articles were buried about six inches underneath the earth. They could not be visible to anyone. Respondent may have his own reasons for not taking them away when they were taken out from the Railway Engine. There is nothing to show that the statement Ex. It has also been abundantly made out from the evidence that these articles were buried about six inches underneath the earth. They could not be visible to anyone. Respondent may have his own reasons for not taking them away when they were taken out from the Railway Engine. There is nothing to show that the statement Ex. P-2 was in any manner involuntary or was obtained by any threat or inducement. In that statement respondent had clearly admitted that he committed the theft of those articles and had buried them in the ground. This gets further supported from the discovery of those articles, the decision Trimbak v. The State of M.P. AIR 1954 SC 39 has rightly been distinguished by Dwivedi, J., in view of the facts of present case. The evidence of the defence witnesses has also been rightly rejected by him and I have nothing to usefully add to those reasonings. 61. In view of what I have said above, in my opinion, this appeal by the State deserves to be allowed and the respondent should be convicted under section 3 of the Railway Property (Unlawful possession) Act, 1966. The sentence of fine of Rs. 300/- in default rigorous imprisonment for three months as was awarded to him by the trial Magistrate should be restored. 62. In view of the opinion of Sharma J., dated January 2, 1980, the appeal filed by the State of Madhya Pradesh succeeds and is hereby allowed. The respondent is convicted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and sentenced to pay a fine of Rs.300/- or, in default of the payment of fine, to undergo three months rigorous imprisonment.