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2006 DIGILAW 463 (BOM)

PRAKASH CHINDHU BORSE v. STATE OF MAHARASHTRA

2006-03-27

S.P.KUKDAY

body2006
( 1 ) IN both these petitions, order of conviction and sentence passed by Judicial Magistrate, First Class (Railways) Bhusawal in regular Criminal Case No. 216/1993 on 8-11-1994, convicting the petitioners of the offence punishable under section 3 (a) of the Railway Property (Unlawful) possession Act, 1966 (hereinafter to be referred as RPTJP Act) and sentencing them to suffer simple imprisonment till rising of the Court and to pay fine of rs. 300/- in default, to suffer R. I. for one month. ( 2 ) THE matter was carried in appeal. Learned Sessions Judge, Jalgaon dismissed Appeal Nos. 75/1994 and 76/1994 by Judgment and Order dated 17-1-1998, confirming the order of conviction and sentence passed by learned Trial judge. ( 3 ) THE facts, in nutshell are that the petitioners are employees of Railways and were serving as Gangman at Dharangaon railway station. On 28-5-1993 r. P. F. constable Shri Dayashankar Mishra (PW-2) was performing patrolling duty in railway yard at Dharangaon. At about 8. 45 p. m. , goods train carrying coal stopped at the station. The petitioners climbed the railway wagon and dropped coal on the railway track from the wagon. They alighted from the wagon and were putting the coal in gunny sacks which they were carrying with them. At this stage, they were apprehended by R. P. F. constable Dayashankar Mishra. It was found that petitioner No. 1 Prakash Borse was having 46 kg. coal, petitioner No. 2 -Uttam Tayade was having 37 kg. coal and petitioner - Pralhad Baviskar was having 31 kg. coal in their respective gunny sacks. R. P. F. constable Dayashankar mishra relayed this message to A. S. I. Subhedarsingh through Station Master, as a result, A. S. I. Subhedarsingh came to Dharangaon with constable Jaisingh by 77 dn. Surat-Bhusawal passenger train. He seized the coal from the petitioners under panchanama. He also prepared panchanama of scene of occurrence and obtained a certificate from Station Superintendent Rupchand Waghode (PW-5) regarding passage of goods train at the relevant time. After investigation, charge- sheet was filed. ( 4 ) AT the conclusion of the trial, learned Magistrate found that testimony of dayashankar has received sufficient corroboration and is worthy of belief. On the basis of evidence of Dayashankar, A. S. I. Subhedarsingh and the circumstances proved, learned Magistrate came to the conclusion that the guilt of petitioners is proved beyond doubt. ( 4 ) AT the conclusion of the trial, learned Magistrate found that testimony of dayashankar has received sufficient corroboration and is worthy of belief. On the basis of evidence of Dayashankar, A. S. I. Subhedarsingh and the circumstances proved, learned Magistrate came to the conclusion that the guilt of petitioners is proved beyond doubt. He, therefore, convicted the petitioners, as aforesaid, by order dated 8-11-1994. ( 5 ) THE appellate Court dismissed the appeals preferred against the order of magistrate, confirming the order of conviction and sentence. These orders of the courts below are impugned in these revision petitions. ( 6 ) IN both the revision applications order of conviction and sentence relating to the same incident is challenged. Therefore, these petitions are being disposed of by a common judgment. ( 7 ) PRINCIPLES governing exercise of revisional jurisdiction are now well settled. Revisional jurisdiction is to be exercised only in cases where lower courts have ignored material evidence and have recorded perverse findings or the orders of lower Courts suffer from patent illegality, resulting in miscarriage of justice. It is not permissible for the revisional Court to reappreciate the evidence, as is done in Second Appeal. The principles governing exercise of revisional jurisdiction are laid down by the Apex Court in the matter of State of karnataka vs. Appa Balu Ingale and ors. reported in AIR 1993 SC 1126 . It is observed by the Apex Court that under its revisional jurisdiction, High Court can go into the facts in case of gross failure of justice. It has power to correct jurisdictional failure. Ordinarily it is not open for the High Court to interfere with the concurrent findings of the two lower Courts, specially reappreciating the evidence in its revisional jurisdiction. ( 8 ) IN the present case, learned Counsel for the petitioners has disputed correctness of the findings recorded by the lower Courts on two grounds, firstly the panchanama of the scene of occurrence is not proved and secondly expert in the field has not been examined to establish that the coal belong to railways. ( 8 ) IN the present case, learned Counsel for the petitioners has disputed correctness of the findings recorded by the lower Courts on two grounds, firstly the panchanama of the scene of occurrence is not proved and secondly expert in the field has not been examined to establish that the coal belong to railways. ( 9 ) PER contra, learned A. P. P. has pointed out that evidence of R. P. F. constable Dayashankar Mishra and the evidence of Mahammed Yasin Khan (PW-6), who is serving as Loco Foreman for the last 36 years, establish that the petitioners did commit theft of the coal from the railway wagon and that the coal was railways property. According to learned A. P. P. evidence of Dayashankar inspires confidence. It is not in dispute that the petitioners were found with the coal and were apprehended. Having regard to the evidence on record, there is no scope for interference. Therefore the petitions deserve to be dismissed. ( 10 ) COMING to the first contention, it can be seen from perusal of the record that local witnesses, including A. S. M. Rupchand Waghode, have turned hostile as the petitioners were serving as Gangmen at Dharangaon railway yard. However, R. P. F. constable Dayashankar Mishra and A. S. I. Subhedarsingh were from R. P. F. Outpost Amalner. Therefore, both have stuck to their earlier version. In the present case, it is not in dispute that goods train, carrying coal halted at dharangaon station at 8. 45 p. m. (PW-5) A. S. M. Rupchand Waghode though has turned hostile on another point, has proved the certificate. It is also not in dispute that the gunny sacks containing coal were attached from the petitioners. These facts lend assurance to evidence of R. P. F. Dayashankar Mishra that petitioners climbed the railway wagon, threw coal on the railway track, climbed down from the wagon and put the coal in gunny sacks they were carrying. During cross- examination of this witness, no damaging admission was brought on record. Learned Trial Judge as well as Appellate Judge have considered his testimony in the light of other circumstances and have rightly come to the conclusion that evidence of Dayashankar is worthy of belief. Therefore, even if we ignore the panchanama, acts of petitioners, in stealing the coal from the railway wagon have been proved. Learned Trial Judge as well as Appellate Judge have considered his testimony in the light of other circumstances and have rightly come to the conclusion that evidence of Dayashankar is worthy of belief. Therefore, even if we ignore the panchanama, acts of petitioners, in stealing the coal from the railway wagon have been proved. ( 11 ) THE second contention that the coal was not examined by an expert in the field and is not proved to be the property of railways, will have to be considered in the light of earlier discussion. In this case, petitioners were caught in the very act of the commission of theft of coal. All of them climbed the wagon carrying coal and were dropping the coal on railway track. After they kept the coal in the gunny bags, the petitioners were apprehended on the spot. As direct evidence of theft of coal belonging to railways is available, the evidence of expert is not required. However, as PW-6 Yasin Mohammed Khan, has served as loco Foreman for 36 years. He was using this coal during all these years. Therefore, lower Courts have rightly considered his evidence to substantiate their conclusions. Learned Counsel for the petitioners contends that the theft cannot be held to be proved in the absence of certificate from the expert that the property belongs to railways. Only in the cases where there is no direct evidence regarding commission of theft, such a certificate would be required to establish that the property belongs to railways. If the direct evidence is available, expert opinion is not required. Considering the material on record, it can be seen that appreciation of evidence by both the Courts below, cannot be faulted on any count. The findings are based on proper analysis of the evidence on record. Learned Counsel for the petitioner has failed to show that any material evidence is remained to be considered or inadmissible evidence is taken into consideration for reaching the conclusion. No other illegality is pointed out. In these circumstances, it is not permissible to interfere with the order of conviction and sentence passed by the trial Court and confirmed by the Appellate Court. It may also be mentioned that the trial Court has taken extremely lenient view. According to learned Counsel for the petitioners, petitioners may lose their service, therefore, benefit of probation of Offenders Act be given to them. It may also be mentioned that the trial Court has taken extremely lenient view. According to learned Counsel for the petitioners, petitioners may lose their service, therefore, benefit of probation of Offenders Act be given to them. This contention was raised before the trial Court and it was rightly rejected. Someone has to take cognizance of the looting of public property, in this case, by none other than employees of the railways have committed the theft. Therefore, the contention, that benefit of probation be given to petitioners, cannot be sustained. In this view of the matter, the petitions are dismissed accordingly. Rule is discharged. As the petitioners have already undergone the sentence and the fine amount is paid, only intimation about this decision be given to the lower Courts. This should be done by following requisite procedure. Petitions dismissed.