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2006 DIGILAW 961 (MAD)

G. A. Alfred Joseph v. State by Inspector

2006-04-05

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- (Revision filed under Sections 397 and 401 of the Criminal Procedure Code against the judgment dated 25.11.2003 passed in C.A.No.49 of 2003 on the file of the Additional District Judge (Fast Track Court No.III), Poonamallee, confirming the conviction and sentence imposed on the accused by judgment dated 23.6.2003 in C.C.No.313 of 1994 on the file of the Judicial Magistrate No.I, Poonamallee.) The revision petitioner is A-3 in C.C.No.313 of 1994 on the file of Judicial Magistrate No.I, Poonamallee. This revision is filed against the conviction and sentence of imprisonment till raising of the Court and fine of Rs.1000/-, in default to undergo Simple Imprisonment for a period of three months, imposed on the third accused for an offence under Section 3(a) of the Railway Property (Unlawful Possession) Act in C.C.No.313 of 1994 as per judgment dated 23.6.2003 and as confirmed by the Additional District Judge (Fast Track Court No.III), Poonamallee, as per judgment dated 25.11.2003 in C.A.No.49 of 2003. 2. The brief facts that led to the filing of this revision petition are as follows:- "(a) Pursuant to the confession statement Ex.P.7 (admissible portion) given by the revision petitioner/ A-3 and the confession statement Ex.P.6 (admissible portion) given by the co-accused A-2, P.W.1, Inspector, Avadi RPF Station, obtained search warrant Ex.P.1 on 05.8.1994 from the Court of Judicial Magistrate No.I, Poonamallee, and made search of the shop belonging to A-1 Paul Pandian in the name of "Waste Paper Mart" at Door No.1/20, Trunk Road, Varadharajapuram, Poonamallee. In the said search, one L & T Track Relay M.O.1, three ACP Plates M.O.2 Series, 8 Band Roll Clips M.O.3 Series and one Fish Plate M.O.4 belonging to Railways with Railway marks were recovered as per search list Ex.P.2. At the time of search in the shop of A-1, he gave confession statement Ex.P.3 and A-2 and A-3 also gave confession statements Ex.P.4 and P.5 (admissible portions) respectively. The accused A-1 to A-3 were sent to the Court of Judicial Magistrate along with the properties M.O.1 to M.O.4. (b) P.W.5 Sridhar, Engineer, on examining the properties M.O.2 to 4, on 26.9.1994 gave certificate Ex.P.15 to the effect that the said properties were Railway properties. The Signalling Department Staff P.W.4 Jayaraman examined M.O.1 series and gave Certificate Ex.P.17 that they are the Railway properties. After completion of investigation, the complaint was filed against A-1 to A-3". 3. (b) P.W.5 Sridhar, Engineer, on examining the properties M.O.2 to 4, on 26.9.1994 gave certificate Ex.P.15 to the effect that the said properties were Railway properties. The Signalling Department Staff P.W.4 Jayaraman examined M.O.1 series and gave Certificate Ex.P.17 that they are the Railway properties. After completion of investigation, the complaint was filed against A-1 to A-3". 3. In order to prove the guilt of the accused, P.Ws.1 to 7 were examined on the side of the complainant and Exs.P.1 to P.31 were marked besides M.O.1 to M.O.4. But no oral or documentary evidence was let in on the side of the accused. 4. The trial Court, considering such evidence adduced on the side of the complainant and the Exhibits and Material Objects marked, found the accused guilty for the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act and convicted and sentenced them as set out above. On appeal in C.A.No.49 of 2003 by the accused A-1 to A-3, the first Appellate Court, by judgment dated 25.11.2003, confirmed the conviction and sentence passed by the trial Court. The judgment of conviction and sentence passed by the trial Court, as confirmed by the first Appellate Court, is under challenge in this revision by A-3. 5. Heard the learned counsel for the revision petitioner / A-3 and the learned Government Advocate (Criminal side) for the respondent. 6. Learned counsel for the revision petitioner / A-3 submitted that false case has been foisted against A-3, who was employed as Master Craftsman in the Railway Signal Department. It is also submitted that the confession statement said to have been made by A-3 has not been proved in accordance with law by examining the independent witness, who has attested the same. Therefore, according to the learned counsel, since Ex.P.7 confession statement of A-3 has not been proved, conviction passed by the trial Court solely on the basis of such confession statement is improper. Learned counsel further contended that the confession statement Ex.P.5 said to have been made by A-3 has also not been proved by examining the independent witness, who has attested the same and that, therefore, Ex.P.7 was obtained in a suspicious circumstances. Learned counsel further contended that the confession statement Ex.P.5 said to have been made by A-3 has also not been proved by examining the independent witness, who has attested the same and that, therefore, Ex.P.7 was obtained in a suspicious circumstances. In this regard, learned counsel relied on the evidence of one Rayan, who was examined as P.W.3 in the connected case in C.C.No.311 of 1994, in which also the revision petitioner is an accused, who has spoken to the fact that the track relay, which was the railway property in the connected case in C.C.No.311 of 1994 remained unused and kept in the Pothanur Railway Stores, which evidence is available in the typed set. It is the further submission of the learned counsel that after retirement of the revision petitioner, who was employed in the Railways, cases have been foisted against him in the connected cases, which ended in acquittal. 7. Learned counsel for the petitioner / A3 relied on the decision Gour Mohan Chowdhury ..Vs.. State Of West Bengal reported in 1995 CRL.L.J.1214, wherein it was held as follows:- "From a plain reading of Section 3 of the said Act is apparent that the materials seized must be a railway property and must be in possession of the person and that the property must reasonably be suspected of having been stolen or unlawfully obtained. Thus, when from the seizure list it was not clear from whose possession each of the materials was seized and there was also no indication as to whether the materials were seized from any person; rather there were indications in the seizure list that the materials were recovered from the truck and not from any person in the absence of said allegation the proceeding under S.3 against the petitioners-accused would not be maintainable". 8. Learned counsel for the petitioner relied on the said decision in support of his arguments that confession statement Ex.P-7 alleged to have been recorded by P.W.1 from A3, has not been proved by examining independent witness, who has attested the same and that M.Os.1 to 4 as stolen by the petitioner along with A2 and sold to A1 for monetary benefits has also not been proved. 9. Learned Government Advocate (Criminal side) appearing for the respondent submitted that the complainant has proved the case against A-3 also by examining P.Ws. 9. Learned Government Advocate (Criminal side) appearing for the respondent submitted that the complainant has proved the case against A-3 also by examining P.Ws. 1 to 7 and marking Exs.P.1 to P.31 and Material Objects. It is further submitted that only on the basis of the confession statement Ex.P.7 given by the revision petitioner / A-3, the shop of A-1 was seized after obtaining search warrant Ex.P.1 from where M.Os. 1 to 4 were recovered as per search list Ex.P.2 proving the guilt of the revision petitioner / A-3 also. By referring to the evidence of P.W.4 Signalling Department staff, who has stated in his cross-examination that the trains can be run in Railway Track even though there is no track relay, and further contended that P.W.1 Railway Inspector is not a Police Officer and as such, Ex.P-7 is very much admissible and therefore the conviction and sentence imposed on A-3 by the trial Court solely on the basis of Ex.P.7 confession statement of A-3, which is corroborated by the other witness, as confirmed by the first Appellate Court, do not call for interference. 10. It is the definite case of the respondent / complainant, Inspector, Railway Protection Force, Avadi, that as per the confession statement Ex.P-7 given by Ex.A-3 and confession statement of Ex.P-6 given by A2, P.W.1 Inspector, Avadi RPF Station, obtained search warrant Ex.P-1 on 05.08.1994 from the Court of Judicial Magistrate No.I, Poonamallee and made search of the shop belonging to A1 Paulpandian run in the name of "Waste Paper Mart" at Door No.1/20, Trunk Road, Varadharajapuram, Poonamallee. As per the search list Ex.P-2, M.Os.1 to 4 were recovered. During the search, A2 and A3 were also present and gave confession statements Exs.P-4 and P-5 respectively. In the confession statement Ex.P-7 given by this petitioner/A-3 on 03.08.1994, it is stated that one Duraisamy, gangman was working in Thiruninravur and he was known to him and he retired and his son A2 was also known to him. It is further stated in the statement that since he was working in the Signal Relay Compartment, he used to steal relay coils and sell the same through A2 and according to his evidence, two or three times he had stolen relay boxes from the Railways compartments of Avadi and Arakkonam Sections and being afraid that he will be caught, he gave voluntary retirement. Even after retirement, along with A2, he used to commit theft of relay boxes and used to steal the same through A2 and obtained the share amount. 11. As usual on 03.08.1994, he came to Pattabiram Railway Station along with A2, who broke open the signal box and committed theft of two relay boxes through cutting player and after doing so, when they were proceeding, they were caught red handed by P.W.1 at Hindu College Railway Station. As per the statements made by A2 and A3, search warrant was obtained by P.W.1 and the shop of A1 was searched in the presence of A2 and A3, from where railway properties M.Os.1 to 4 were seized under the Search List Ex.P-2. During that time, A1 gave confession statement under Ex.P-3 and A2 and A3 have given confession statements Exs.P-4 and P-5 respectively. After committing theft of railway properties, A2 and A3 used to sell the same to A1 including M.Os.1 to 4. No doubt, it appears, Exs.P-5 and P-7 made by the accused were attested by Kadar Gani and Gani Basha and they have not been examined on the side of the complainant. But however, there is no force in the arguments advanced by the learned counsel for the revision petitioner / A3 that no reliance can be placed upon Exs.P-5 and P-7, in view of the fact that both were recorded by P.W.1, who is not a Police Officer and that Exs.P-5 and P-7 are very much admissible in evidence. It is clearly stated in Exs.P-5 and P-7 about the theft of railway properties by A3 and co-accused A2 and about the sale of such properties to A1 and after obtaining Ex.P-1, A2 and A3 took P.W.1 and other officials to the shop of A1, from where the railway properties M.Os.1 to 4 were recovered from the shop. 12. P.W.4, Jayaraman, working in Signal Department, also certified that M.O.1 series are the railway properties and P.W.5 Part Time Engineer, Southern Railway has examined the properties on 26.09.1994 and certified that M.os.2 to 4 are the railway properties, which contains the typical railway marks and issued Certificate Ex.P-15 to that effect. 13. 12. P.W.4, Jayaraman, working in Signal Department, also certified that M.O.1 series are the railway properties and P.W.5 Part Time Engineer, Southern Railway has examined the properties on 26.09.1994 and certified that M.os.2 to 4 are the railway properties, which contains the typical railway marks and issued Certificate Ex.P-15 to that effect. 13. Therefore, from the evidence of P.Ws.4 and 5, it is clear that the properties M.Os.1 to 4 recovered from the shop of A1 under Ex.P-2 are railway properties, within the meaning of Section 3 of Railway Property (Unlawful Possession) Act. It remains unexplained as to how A1 came to be in possession of the same. In this regard, satisfactory evidence has been let in on the side of the complainant that the said properties being railway properties were stolen by A3 along with co-accused A2 and sold the same to A1 as stated by A1 to A3 in Exs.P-3 to P-7. It is not the case of A1 to A3 that the said properties are available in open market and were purchased by them. 14. The respondent Railway Protection Force has clinchingly proved that M.Os.1 to 4-the railway properties seized from the shop of A1 under Ex.P-2 are reasonably suspected to have been stolen by this accused(petitioner) along with the co-accused A2. 15. The decision relied on by the learned counsel for the revision petitioner is not applicable to the case on hand. In the said judgment of the Calcutta High Court, the railway properties were found from the lorry and during the time of seizure nobody was found to be in possession of the materials. 16. The trial Court after considering all these aspects in proper perspective, has rightly came to the conclusion that A3 has committed the offence under Section 3(a) of Railway Property (Unlawful Possession) Act and convicted and sentenced him as stated above. It does not call for any interference, which has been confirmed by the Additional District Judge, (Fast Track Court), Poonamallee. In fact, only lesser punishment has been imposed to A3 by sentencing him to imprisonment till the rising of court, besides fine of Rs.1000, in default to undergo three months simple imprisonment. There is no merit in the appeal and it is liable to be dismissed. 17. For the reasons stated above, the appeal is dismissed, confirming the conviction and sentence imposed by the trial court.