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2004 DIGILAW 297 (GAU)

Md. Ajim Uddin Sheikh v. State of Assam

2004-04-29

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and order, dated 3.8.1996, passed by the learned Sessions Judge, Bongaigaon, in Criminal Appeal No. 11(4)/95, dismissing the appeal and upholding the judgment and order, dated 30.11.1995, passed by the learned Chief Judicial Magistrate, Bongaigaon, in CR No. 174/93, convicting the accused-petitioner under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as "the RPUP Act") and sentencing him to undergo rigorous imprisonment for 3 months and pay a fine of Rs.100. 2. The accused-petitioner was charged, at the trial, under Section 3(a) of the RPUP Act, but he pleaded not guilty to the charge framed against him. 3. The case of the prosecution, as unfolded at the trial, many, in brief, be stated as follows: On 19.9.1992 at about 1.30 AM, when the informant, constable Gagan Ch. Kalita (PW 2) alongwith Inspector Bikash Narzary (PW 5) and constable Ananta Baishya (PW 3) made a surprise check at the premises of the stores of New Bongaingaon Railway Workshop, they saw the accused hurriedly going towards the southern boundary wall of the workshop carrying some materials on his shoulder. On being chased, the accused threw away the materials and attempted to scale over the boundary wall, but he was apprehended. On a search being carried out, a MG drawbar was found lying at the place, where the accused had thrown the same. A complaint (Ext. 2) was lodged by constable Gagan Kalita (PW 2). The accused confessed that he had entered into the workshop through the water passage and taken the MG drawbar. Inspector Bikash Narzary seized, vide seizure list, (Ext. 3), the said drawbar (M Ext. 1). A confessional statement (Ext. 4) of the accused was also recorded. The seized article, on examination by an expert, was opined to be a railway property. On completion of the investigation, offence report (Ext. 5) was submitted by Inspector Bikash Nurzary against the accused under Section 3(a) RPUP Act. 4. In support of their case, prosecution examined five witnesses. The accused was, then, examined under Section 313 Cr.PC and in his examination aforementioned, the accused denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 4. In support of their case, prosecution examined five witnesses. The accused was, then, examined under Section 313 Cr.PC and in his examination aforementioned, the accused denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. On conclusion of the trial, the learned trial Court found the accused-petitioner guilty of the charge framed against him under Section 3(a) of RPUP Act and convicted him accordingly and the sentenced, as indicated hereinabove, was passed. The appeal preferred by the accused-petitioner failed and, hence, the present revision. 5. I have heard Mr. A. Biswas, learned counsel for the accused-petitioner, and Mr. F. H. Laskar, learned Additional Public Prosecutor, Assam, for the State. 6. On scrutiny of the evidence on record, what attract the eyes is that PW Nos. 2, 3 and 5 are the three witnesses, who had allegedly found the accused taking away the railway property in question. The evidence of PW 5 is that when he (PW 5) along with PW Nos. 2 and 3 was on patrolling duty, they saw the accused going hurriedly towards the boundary wall carrying some materials on his shoulder and on witnessing the same, he (PW 5) along with PW Nos. 2 and 3 chased the accused and the accused, on realizing that he was being chased, threw the materials, which the accused was holding in his hand, and attempted to scale over the boundary wall, whereupon a search was conducted, one MG drawbar was recovered and, then, the accused was apprehended. It is this MG drawbar, which was claimed to be the railway property and was accordingly seized by a Seizure List (Ext. 3). 7. Belying, however, the above evidence of PW 5, PW 2 has deposed that when they saw the accused running towards the boundary wall, they apprehended the accused along with the said MG drawbar in his hand. So far as PW 3 is concerned, his evidence is that on being apprehended, they fond one MG drawbar lying near the accused. 8. Thus, a close scrutiny of the evidence of PWs. 2, 3 and 5 reveal that while PW 2 claimed that the MG drawbar was found in the hands of the accused-petitioner, PW Nos. So far as PW 3 is concerned, his evidence is that on being apprehended, they fond one MG drawbar lying near the accused. 8. Thus, a close scrutiny of the evidence of PWs. 2, 3 and 5 reveal that while PW 2 claimed that the MG drawbar was found in the hands of the accused-petitioner, PW Nos. 3 and 5 belied the said assertion of PW 2 and claimed that the MG drawbar was found lying at the ground. This apart, while PW 5 claims that the accused had thrown away the materials and while he was attempting to scale over the boundary wall, he was apprehended, neither PW 2 nor PW 3 support PW 5 that the accused was seen throwing away the MG drawbar. 9. In the face of what have been pointed out above, it could not have been confidently held that the evidence of the PWs 2, 3 and 5 were true. The learned Courts below, it appears from the impugned judgment, did not notice the glaring inconsistencies in the evidence of the said three witnesses, who claimed to have apprehended the accused together and recovered that the said MG drawbar. 10. It is also of immense importance to note that though the accused is said to have made a confessional statement before the PW Nos. 2, 3 and 5 and the same has been proved as Ext. 4, the confessional statement, so recorded, indicates that according to this confessional statement, while the accused was trying to take away the said MG drawbar, three RPF personnel apprehended and recovered the said MG drawbar. The confessional statement gives no indication at all that the accused threw away the MG drawbar and/or that he attempted to scale over the boundary wall. Far from this, accordingly to the confessional statement, the accused was apprehended along with the MG drawbar, when he was proceeding towards the wall. Thus, the evidence given by PWs 3 and 5 bely the confessional statement made by the accused. When the eye witness's account of the occurrence belies the confessional statement, none of the two can be said to generate the confidence of the Court. Thus, the confessional statement does not, in the light of the contradictions indicated hereinabove, help the persecution's case. 11. In view of what have been pointed out above, the conviction of the accused-petitioner cannot be maintained. 12. Thus, the confessional statement does not, in the light of the contradictions indicated hereinabove, help the persecution's case. 11. In view of what have been pointed out above, the conviction of the accused-petitioner cannot be maintained. 12. In the result and for the reasons discussed above, this revision succeeds, the impugned judgments and orders of conviction and sentence passed against the accused-petitioner shall accordingly stand set aside and quashed. 13. Send back the LCRs. Revision allowed.