JUDGMENT : L. Rath, J. - The Respondents having been acquitted in at prosecution u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the 'Act') the State has preferred this appeal. 2. The case against the Respondents in the trial was that the Respondent No. 1 was the Brakeman and, Respondent No. 2 was the Guard of the Asonsol-Puri Passenger train on 20.9.77, they having taken over such charge from Bhadrak railway station Respondent No. 1 was occupying the Brakevan towards front of the train and the Guard van was at the rear. A parcel van of whom the Guard was also in charge was adjacent to the guard van. The train left Bhadrak railway station at 11.30 p.m. P.W. 6 a Rail way Rakshyak escorting the train saw at Jenapur station the Respondent No. 1 to have gone to the Guard. At Nirgundi station both P.W. 6 and P.W. 7 another Rakshyak found the Respondent No. 1 coming, from the Guard's brakevan with a red bag containing some articles and going towards the front brake van. P.W. 7 accosted the Respondent No. 1 enquiring about the contents of the bag to which the Respondent No. 1 replied of having inside it some cloths and plastic wires given by the Respondent No. 2 to him. P.W. 6 further asked the Respondent No. 1 as to wherefrom the Respondent No. 2 had got the articles and received the reply that the Respondent No. 1 had brought them from the brakevan. It was the statement of P.W. 7 that the Respondent No. 1 had replied of the Guard having got the articles from the luggage-van. The articles in the bag were kept by the Respondent No. 1 in his Line box in the front brake-van. P.W. 6 asked P.W. 7 to keep a watch on him and proceeded towards the rear brakevan. The train reached Cuttack at 1.30 a.m. of 21.9.77 where P.W. 6 reported the matter at the R.P.F. Post, P.W. 1, a Sub-Inspector of R.P.F. receiving information about the pilferage of the cloths from the parcel van went to the station along with P.W. 2, another Sub. Inspector of R.P.F. where they met P.Ws. The train reached Cuttack at 1.30 a.m. of 21.9.77 where P.W. 6 reported the matter at the R.P.F. Post, P.W. 1, a Sub-Inspector of R.P.F. receiving information about the pilferage of the cloths from the parcel van went to the station along with P.W. 2, another Sub. Inspector of R.P.F. where they met P.Ws. 6 and 7 and receiving information from them that some Khadi Dhotis had been kept concealed in the guard's brake-van by the guard and that some such dhoties had also been kept concealed by the Respondent No. 1 in his line box, he directed P.Ws. 2 and 6 to search the brakevan and himself along with P.W. 7 proceeded to the front brake van. Since the Respondent No. 1 was busy in loading and unloading the parcels, he could not check the front brake-van and hence when the train started, he proceeded on the same to Khurda Road. There the Respondent No. 1 opened the line box unlocking the same and therein a red bag containing three pieces of Khadi silk dhoties and three bundles of plastic knitting wire were found for which no satisfactory account could be given by the Respondent No. 1 excepting that he received the same from the Respondent No. 2 at Nirgunai railway station. P.W. 1, seized as per Ext. 1, the Khadi silk dhoties and the plastic wires. P.W. 1 thereafter came back to the rear brake van He received the seizure list, Ext. 3 from P.W. 2 who had seized two pieces of Khadi silk dhoties from underneath the sbat of the Guard between the newspaper bundles in the guard's brake-van and he also received Ext. 2 the F.I.R. lodged by P.W. 6, from P.W. 2. He asked the Respondent No. 2 to open the dog box in the brake van, but he pleaded inability saying the key not to be with him. 2 the F.I.R. lodged by P.W. 6, from P.W. 2. He asked the Respondent No. 2 to open the dog box in the brake van, but he pleaded inability saying the key not to be with him. P.W. 3, the Inspector of R.P.F. also reached the spot receiving information of pilfe rage of cloths having taken place and went to the guard's brake-van and asked the Respondent No. 2 about the case to which the Guard kept silent and thereafter informed of he having pilfered at Jenapur Khadi dhoties from the registered insured parcel kept in the luggage van through the dog box and that he had kept the dhoties in a black cloth hand bag inside the dog box and had locked it. Since the key was not provided on being asked, P.W. 3 called the available carriage staff of the station and broke open the lock and inside it found a black hand bag containing 11 pieces of Khadi silk dhoties of different sizes and qualities of which on 7 pieces of Khadi silk dhoties at corners there were printed handwritten slips of "Rameswar Prasad Ramdhani Ram Nepura P.O. Silao, Nalanda, Bihar, quality No. 18 size 4 1/2 X 54 Sudh Khadi and Tusser Silk Se", on three other pieces the size was scribed as 4 X 54 and quality No. 17 and in another piece the size was written as 4 1/2 X 54 and quality No. 20. In the same bag there was a small steel knife with wooden handle and also a small hammer with steel handle with the facility at one end for extracting nails and the facility at the other end for use as a screw driver. He seized the con tents of the cloth bag as also the articles recovered. He also found the partition wall in between the luggage van and the dog box broken leaving a passage for passing of a person from the guard's cabin to the luggage-van through the dog box. He checked the insured parcels on platform and found one of the insured parcels seals to be broken and tampered at one corner and the tampered place restitched upto the place where the lac of the seal was broken. He brought that parcel to the Parcel office for being weighed which on weighment was found to be 31 Kgs. instead of 41.5 Kgs. The seizure list Ext. He brought that parcel to the Parcel office for being weighed which on weighment was found to be 31 Kgs. instead of 41.5 Kgs. The seizure list Ext. 4 showing seizure of 11 pieces of cloths, steel knife as also the hammer was received by P.W. 1. All the parcels had been unloaded at Khurda Road station except the parcels meant for Puri, The parcel whose seal appeared to have been broken had the printed mark of Sile-341685/P-ISBC. An inventory of the parcel was made at Khurda Road in presence of the Chief Parcel Clerk, the Station Master and P.W. 2. From inside it, 52 pieces of Khadi dhoties and two pieces of handkerchief were found and the weight of the parcel, though was required to be 41.5 Kgs according to the way bill and the R.R., yet was found to be only 31 Kgs. The train thereafter proceeded to Puri P.W. 1 telephoned the A.S.I. of R.P.F. at Puri to inspect the luggage-van since he suspected that there were stolen properties inside it. P.W. 4 is the A.S.L. of R.P.F. at Puri who searched the luggage-van there while the, train was being washed and recovered from a closed but unlocked steel almirah a bundle containing 14 dhoties. Such dhoties were seized and were handed over to P.W. 1 as per seizure list, Ext. 8. Two dhoties, one from inside the parcel and the other from out of the seized articles, were taken by P.W. 1 to the firm Ramdhani Ram at Silao where they were identified by P.W. 9 as having been sent by the firm in the insured parcel. The Respondent No 2 also made a confessional statement. Ext. 13 before the P.W. 1 of he having pilfered the dhoties, P.W. 1 also recorded the statement of the Respondent No. 1, Ext. 14 who stated of the Respondent No. 2 having removed the dhoties and having given three pieces to him. On completion of investigation a complaint was filed by P.W. 1. 3. The defence of the Respondents was one of complete denial of the theft from the parcel and a defence witness was also examined by them who deposed that the cloths recovered from them had been purchased from the shop of one Shyamsundar Lal Jain, N.H. Road, Keonjhar Town. 4. 3. The defence of the Respondents was one of complete denial of the theft from the parcel and a defence witness was also examined by them who deposed that the cloths recovered from them had been purchased from the shop of one Shyamsundar Lal Jain, N.H. Road, Keonjhar Town. 4. The learned Magistrate in acquitting the Respondents held as follows: The burden therefore squarely lies upon the prosecution to establish that the property which is the subject matter of an offence and is suspected to be stolen property and reasonable suspicion must be atleast founded on upon some definite fact other than personal feeling tending, to suspicion on the person and not by mere vague surmise.... He acquitted the Respondents since P.Ws. 5 and 6 on whose report suspicion arose were unable to depose correctly to the prosecution case and also unable to show any document relating to their duty in the said train to him which cast doubt regarding the prosecution case. Besides exception was also taken for non-examination of the independent witnesses and non-corroboration of the prosecution case by the prosecution witnesses. 5. A prosecution u/s 3(a) of the Act stands on a different footing from the prosecutions under the ordinary penal provisions inasmuch as the burden is placed on the persons charged to prove their possession of the railway property to be lawful and unless such burden is discharged they become liable for punishment. The only factors necessary to be established in a prosecution under the provisions of the Act are that the person concerned must be shown to have been in possession of railway property and that a reasonable suspicion must exist of the property to have been stolen or unlawfully obtained. It being the case of the prosecution that the properties recovered from the Respondents were those which were taken out of the insured parcel booked from Silao, the properties were railway properties provided the identity of the seized articles being those sent in the parcel is established. The parcel the moment it is booked in the railways as the carrier, continues to remain railway property till delivery thereof has been taken by the cons goee. The parcel the moment it is booked in the railways as the carrier, continues to remain railway property till delivery thereof has been taken by the cons goee. Hence it is to be seen as to whether the prosecution had been successful in establishing the two ingredients of the seized cloths being the same as those sent in the insured parcel and whether regarding such seized cloths a reasonable suspicion could arise of the same having been stolen or unlawfully obtained by the Respondents. 6. It is the evidence of Ramdhani Ram (P.W. 9) that he had booked 97 pieces of Khadi dhoties and 4 pieces of cloth meant for handkerchief on 7.9.77 at Silao railway station and the weight of the parcel was 41.5 Kgs. He had himself put the lac seals using four seals on the stitching of the packet. The investigating officer had also brought the impression of the seals. On the day of booking of the parcel he got the railway receipt and a carbon copy of the R.R. He stated also that on the booked goods the printed labels of Rameshwar Prasad and Ramdhani Ram were pasted and they further contained the mark of 'Tusser Silk'. The dhoties brought by the investigating officer were identified by him to be the products of their firm. He also proved the seals on the covering cloth of the packet (M.O. XXVI) to be broken and the lac used to have been tampered and the plastic thread used for stitching the packet to have also been tampered. The witness also identified in court all the dhoties brought out from the petti (M.O. XXV) to be the dhoties booked by him. P.W. 12 was the Relieving Commercial Clerk at Silao railway station on 7.9.77 who had booked the insured parcel. The seizure of dhoties were respectively proved by P.Ws. 1, 2, 3, 4, 6 and 7. 7. P.W. 1. is a witness to the seizure of three pieces of dhoties from the custody of the Respondent No. 1 while P.W. 2 has proved the seizure of two pieces of cloth from underneath the seat of the guard, Respondent No. 2. 50 far as a seizure by P.W. I is concerned, the witnesses to the seizure are P.Ws. 7 end 8. P.W. 8 was declared hostile since he stated of not being able to say wherefrom the properties were seized. 50 far as a seizure by P.W. I is concerned, the witnesses to the seizure are P.Ws. 7 end 8. P.W. 8 was declared hostile since he stated of not being able to say wherefrom the properties were seized. So far as seizure by P.W. 2 is concerned, the witnesses are P.Ws. 5 and 6. P.W. 5 was also declared hostile since though he had stated earlier that the two dhoties had been brought out from the parcel of newspapers, yet contradicted himself saying that he could not say wherefrom the staff brought out the two dhoties and also stated that he had not gone through the contents of the seizure list, Ext. 3 before he signed it. So far as seizure by P.W. 3 of the 11 pieces of dhoties is concerned, the witnesses are the Respondent No. 2 himself one K.S. Panda the other Guard, R.G. Singh, Head Rakshyak and P.W. 6, but the seizure has been sought to be proved through the evidence of only P.Ws. 3 and 6. The seizure made by P.W. 4 at Puri has been sought to be proved through him and no other witness has been examined to prove the same. The fact of the seizure having been made from the possession of the two Respondents are not open to doubt merely because P.Ws. 5 and 8 did not support the seizure. It was held in Ram Anjore and Others Vs. State of Uttar Pradesh, that the evidence of the officers making the seizure can by themselves prove seizure even if the witnesses to the seizure turn hostile. No objection can also be taken that the seizure under Exts. 1 and 3 have not been made in presence of the independent witnesses since P.Ws. 5 and 8 cannot be said not to be independent witnesses merely because they are railway staff and even if such witnesses turn hostile, yet the seizure effected is not to be discarded. For the same reason, the seizure under Ext. 4 having been supported by P.W. 3 and P.W. 6 cannot also be thrown out. So far as seizure by P.W. 4 at Puri is concerned, it has been effected inside the luggage-van at Puri. For the same reason, the seizure under Ext. 4 having been supported by P.W. 3 and P.W. 6 cannot also be thrown out. So far as seizure by P.W. 4 at Puri is concerned, it has been effected inside the luggage-van at Puri. Even if such seizure is believed, yet the luggage van having been opened and the parcels unloaded at Khurda Road station and the Respondent No. 2 having also got down at Khurda Road, it could not be said that those seizures were made when the luggage-van was under his custody It also does not stand to reason as to how even though the luggage-van was opened at Khurda Road, the parcels were unloaded there, yet the steel almirah which was not locked and contained the dhoties was not found out. 8. It is in evidence that the Respondent No. 2 remained in charge of the luggage-van and the parcels inside it. Since the seizure of the cloths under Exts. 1, 3 and 4 respectively from the possession of the Respondents 1 and 2 were proved and the identity of the cloths were established to be the same as those which were booked from Silao by P.W. 9, the Respondents were required to discharge the onus upon them and explain as to how 'they came in possession of such articles. Coupled with such fact, the evidence that the Respondent No 2 stated the key of the dog box to have been lost and on its being broken open, it was found that a hole had been made inside the dog box in its side wall which also is a part of separating plank between the luggage-van and the Guard's brake-van, so as to create a passage from the brake-van to the luggage-van though the dog box and the evidence of P.Ws. 1, 2 and 3 that the seals and the stitches of the parcel were tempered with would give rise without hesitation to a reasonable suspicion of the seized properties to have been stolen or unlawfully obtained and hence it would be for the Respondents to account for the same. 9. The defence of the Respondents through D.W. 1 that they had purchased five pieces of cloths from, a shop at Keonjhar and the receipts, Exts. 9. The defence of the Respondents through D.W. 1 that they had purchased five pieces of cloths from, a shop at Keonjhar and the receipts, Exts. A and B filed for that also do not satisfactorily explain the possession of the Respondents The receipts, Exts A and B by themselves only purport to prove purchase of 5 pieces of dhoties 3 by the Respondent No. 1 and 2 by the Respondent No. 2, but no explanation is forth-coming as regards recovery of 1 pieces of dhoties under Ext. 4. The dog box inside the guard's brake-van is undoubtedly in the possession of the guard and the articles found inside it are to be accounted for by him. 10. No importance seems to have been attached by the learned Magistrate regarding the two confessional statements made by the Respondents Ext. 13 is the cloth bag and 3 small bundles of plastic knitting wire, two in green colour and one in white colour and when he asked him about the same, the Respondent No. 2 told him to keep them as his own. The Cloths were having the printed marks on them. The cloths were seized from him by the R P. F. staff and that he could not account for or show any receipt regarding the same and confessed to the facts Such statements made to P. W I are not hit by Section 25 of the Evidence Act since the R.P.F. officers are not police officers as held by the Supreme Court in Balkishan A. Devidayal Vs. State of Maharashtra. It is also well settled that a conviction could well be based on confessional statements. The confessional statements of the two Respondents also get ample corroboration from the evidence of P.Ws. 1, 2, 3, 6, 7, 9, 10, 11 and 12. Further even if the confessions are taken as retracted ones in view of the statement of the Respondents referred to in the judgment of the learned Magistrate, yet they can form the basis of conviction as was held in Subramania Goundan Vs. The State of Madras, provided there is general corroboration to the statement and further it is felt that the reasons for retraction from the confession are untrue. The State of Madras, provided there is general corroboration to the statement and further it is felt that the reasons for retraction from the confession are untrue. The evidence discussed earlier shows the confessions to have been amoly corroborated and it is also not believable that the Respondent No. 2, a well-qualified person holding a responsible post would have signed the confessional statement without reading and understanding the same. Rather the reason for the retraction is only to avoid the consequences. 11. In view of the evidence and the confessional statements, the evidence of D.W. 1. and the receipts, Exts. A and B are also not worthy to be relied upon and appear to have been subsequently managed. It is true that in an appeal an acquittal should not be converted to one of conviction without very strong reasons and that the acquittal should be taken to have reinforced the innocence of the accused. But the appreciation of the evidence in an appeal either against the acquittal or against conviction is balanced on the same scale and if it is found that the trying magistrate has without any justifiable reason discarded' evidence which are otherwise consistent, cogent and reliable and approached the evidence under wrong premises of law and also has not properly appreciated the question of onus on the accused in a prosecution under the Act, it must be held that failure of justice has occasioned justifying interference. 12. Considering the facts and circumstances it has to be held that the charge against the Respondents has been brought home and that their acquittal would cause miscarriage of justice and hence must be set aside. 13. While the appeal is to be allowed and acquittal set aside, it is to be considered as to what punishment should be imposed upon the Respondents. The offence committed by the Respondent No. 2 is of most serious nature he having himself indulged in a heinous act of theft of the very property which had been entrusted to his care and custody and such conduct cannot be described as anything else than being blasphemous. Ordinarily such offence would call for a substantive sentence as is the mandatory requirement u/s 3(a) of the Act. Ordinarily such offence would call for a substantive sentence as is the mandatory requirement u/s 3(a) of the Act. However, considering the fact, as has been submitted at the Bar that the Respondent No. 2 has retired since lase two years and that since the date of occurrence, twelve years have elapsed in the meantime, a sentence of fine instead of substantive sentence of imprisonment would rather meet the ends of justice. So far as the Respondent No. 1 is concerned, it being the prosecution's own case that he had no part to play regarding theft of the property but was only a receiver of a portion of it at the instance of the superior officer, the Respondent No. 2, I also feel that instead of substantive sentence of imprisonment, a sentence of fine would batter serve the ends of justice. 14. In the result, the appeal is allowed and the acquittal of the Respondent Nos. 1 and 2 is set aside and they are convicted u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966. The Respondent No. 1 is sentenced to pay fine or Rs. 1000/-, in default to undergo R.I. for three months and the Respondent No. 2. is sentenced to pay fine of Rs. 3,000/- in default to undergo R.I. for six months. Final Result : Allowed