STATE v. ALCAROLL — 1992 DIGILAW 312 (MAD)

Judgment : ( 1 ) APPEAL under Section 378 of the Code of Criminal Procedure 1973 against the acquittal of the aforesaid respondent (Accused) of an offence under section 3 (a) of the Railway Property (Unlawful Possession) Act by the Principal sessions Judge, Coimbatore dated 16-7-1984 and made in C. A. No. 99 of 1984 (CC. No. 821/81 Judicial Magistrate, Tiruppur ). This appeal coming on for hearing on this day upon perusing the petition of appeal and the record of the evidence and proceeding before the said Court of session and upon hearing the arguments of Mr. S. Shanmughavelayutham addl. Public Prosecutor on behalf of the State-appellant and of Mr. V. Gopinath, advocate for the 1st respondent, Mr. G. Ravindran, Advocate for the 2nd respondent and of Mr. K. Selvarajan, Advocate for the 3rd respondent the court delivered the following judgment: the appeal is directed by the State against the order of acquittal passed by the Principal Sessions Judge, Coimbatore reversing the judgment of the Sub Divisional Judicial Magistrate, Tiruppur. ( 2 ) THE brief facts which are necessary for the disposal of the appeal are as follows: the three respondents herein who were the accused before the trial court stood charged for the offence under section 3 (a) of the Railway Property (Unlawful Possession) Act on the allegation that at 8 p. m. on 5-7-1981 below the railway bridge in Odanthurai the accused were found carrying fish plates with rails M. O. 1 series. In support of the above charge the prosecution examined P. Ws. l to 3. P. W. 1 is the Assistant Deputy inspector, Railway Protection force. P. W. 2 is the Gangman. P. W. 3 is the permanent Way Inspector. It is the evidence of P. W. 1 that on 5-7-1981 at about 8 p. m. he along with his party were on rounds. At that time they noticed the three accused herein walking in the river bed below the railway bridge carrying fish plates along with rails M. O. 1 series. P. W. 1 and his party crossed the bridge and reached the other side of the bund. They came to the river bed and caught hold of the accused. On enquiry the accused told P. W. 1 that the fishplates and the rails were found lying in the river and they carried the same. P. W. 1 and his party crossed the bridge and reached the other side of the bund. They came to the river bed and caught hold of the accused. On enquiry the accused told P. W. 1 that the fishplates and the rails were found lying in the river and they carried the same. They brought the accused along with the fishplates and rails to the nearby bunk and they noticed that they are meter guage rails. P. W. 1 seized M. O. 1 series in the presence of p. W. 2 and another under cover of mahazar Ex. P. 1 attested by P. W. 2 and another. He recorded the statements of the accused separately and they are marked as Exs. P2 and P3 and P4. He arrested them and took them to the Railway outpost Police Station, Mettupalayam along with M. O. 1 series. A case was registered. P. W. 3 Permanent Way Inspector was requisitioned to examine M. O. 1 series. Accordingly P. W. 3 examined m. O. 1 series and gave his certificate Ex. P. 5. P. W. 2 and the other attestor were examined and their statements Exs. P. 6 and P. 7 were recorded. After completing the investigation, the charge sheet was filed. P. W. 2 the mahazar witness corroborated the evidence of P. W. 1. ( 3 ) WHEN the accused were examined with reference to the incriminating piece of evidence they totally denied the offence and no witness was examined. The trial judge for the reasons stated in his judgment came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt. He accordingly convicted the accused under section 3 (a) of the Railway property (Unlawful Possession) Act and sentenced them to imprisonment till the rising of the court and to pay a fine of Rs. 1,000/- each, in default to suffer rigorous imprisonment for three months. As against the conviction and sentence, the accused preferred the appeal C. A. No. 99 of 1984 before the principal Sessions Judge, Coimbatore. The learned Sessions Judge allowed the appeal and set aside the conviction and sentence and acquitted them. Hence this appeal by the State. ( 4 ) AFTER hearing the arguments of the learned Addl. As against the conviction and sentence, the accused preferred the appeal C. A. No. 99 of 1984 before the principal Sessions Judge, Coimbatore. The learned Sessions Judge allowed the appeal and set aside the conviction and sentence and acquitted them. Hence this appeal by the State. ( 4 ) AFTER hearing the arguments of the learned Addl. Public Prosecutor and the learned counsel appearing for the accused I find that the impugned order passed by the Sessions Judge does not suffer from any infirmity or illegality for this court to interfere. The learned Additional Public Prosecutor submitted that the lower appellate court is not justified in coming to the conclusion that the prosecution has failed to prove that M. O. 1 series belonged to the Railway. He would also submit that mens rea is not necessary in the instant case and the learned judge is not justified in acquitting the appellant on the ground of absence of mens rea. After going through the evidence and the available materials on record I find that when the accused were apprehended by P. W. 1 they were examined and they gave statements. Even at that time the accused have stated that they picked up M. O. 1 series which were lying in the river. As rightly contended by the learned counsel for the respondents in order to sustain a conviction, three ingredients are necessary, namely the accused has been in possession of the railway property, the property seized from the accused is railway property and the said railway property is reasonably suspected of having been stolen or unlawfully obtained. Thus the above three essential ingredients have to be established before ever any accused is convicted under section 3 (a) of the Railway Property (Unlawful Possession) Act. In this connection the learned counsel for the respondents drew the attention of this court to the decision of this court reported in State by Public Prosecutor vs. Jeevarathnam, 1972 L. W. (Crl.) 79 wherein it has been held. "in order to establish an offence under Section 3 (a) of the Railway property (Unlawful Possession) Act 1966 the prosecution has got to prove (l) that the accused has been in possession of the railway property, (2) that the property seized from the accused is railway property and (3)that the said railway property is reasonably suspected of having been stolen or unlawfully obtained. The three essential ingredients constitute the gist of the offence against an accused. We have got to consider whether the properties themselves have been proved in the instant case as railway properties within the meaning of Sec. 3 of the Railway property (Unlawful Possession) Act of 1966". The learned counsel for the first accused Mr. V. Gopinath drew the attention of this court to para 6 of the judgment of the lower appellate court and pointed out that the learned judge referred to the evidence of P. W. 1. The learned judge pointed out that P. W. 1 has stated that M. O. 1 series do not contain any railway mark, that he has stated in the mahazar that M. O. 1 series do not contain any mark and that he does not know whether properties like M. O. 1 series are being auctioned. It was commented upon mat even in the mahazar it has not been stated that M. O. 1 series contained any railway mark so as to hold that they are railway property. Even though mens rea is not necessary yet it is obligatory on the part of the prosecution to prove that the properties in question are that of the railway in order to sustain a conviction on the accused. In this case it has not been established that M. O. 1 series exclusively belong to Railway. The learned counsel drew the attention of this court to the decision in Sundaram v. State, 1984 L. W. (Crl.) 286 wherein in similar circumstances it was held:"4. In the present case it is worth noting that at the very beginning when the Sub Inspector of Police questioned the accused about the origin of the sleeper, he came out with the explanation that he found it on the bank of the river after the flood. When the accused took such a plea the Sub inspector should have given due consideration to that and if he was not satisfied he should have shown why such a version could not be accepted. The prosecution did not take that course. Both the courts below acted on the assumption that once an article is proved to belong to Railway and is found in possession of a third party that would constitute by itself an offence because there will be a presumption that it would have been stolen. The prosecution did not take that course. Both the courts below acted on the assumption that once an article is proved to belong to Railway and is found in possession of a third party that would constitute by itself an offence because there will be a presumption that it would have been stolen. But Sec. 3 does not read in that manner. It reads on the contrary as follows: "whoever is found or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained". Therefore there is clearly a separate ingredient disclosed by the words "reasonably suspected that the article has been stolen or unlawfully obtained". If an article bears the railway mark it shows only that it belongs to the railways; it may of course raise in the mind of the common man a suspicion, but the reasonable suspicion in the mind of the court that the article has been stolen or unlawfully obtained is something different; it should be based on the elements of records and in that respect there should be a clear statement by the court. So something more than the possession of an article bearing the railway mark is necessary. When a person at the very beginning comes out with a version that version has to be given due consideration because it cuts at the root of the suspicion prone to glide into the mind. In such a case, the prosecution has to show that the explanation given is not acceptable. No such effort was taken by the prosecution in this case. Therefore the ingredient of reasonable suspicion is not established in this case. " the ratio laid down in the above quoted case squarely applies to the facts of the instant case as here also when the Asst. Deputy Inspector P. W. 1 questioned the accused about the fish plates and rail they came out with the reply that they found them in the river. There is the evidence of P. W. 1 that M. O. 1 series do not bear any mark in order to show that they are railway property. In the circumstances mere possession of M. O. 1 series is not sufficient. There is the evidence of P. W. 1 that M. O. 1 series do not bear any mark in order to show that they are railway property. In the circumstances mere possession of M. O. 1 series is not sufficient. There must be some material to hold that the person who is found in possession of M. O. 1 series was found in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained. In this case such ingredient is lacking. Thus on a careful consideration of the entire materials and applying the ratio laid down in the above quoted cases to the facts of this case I have no hesitation in holding that the order of acquittal passed by the Sessions Judge does not call for any interference. On the other hand it is legal and correct. In the result the appeal fails and stands dismissed.