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2012 DIGILAW 121 (GAU)

Joy Prakash Gupta v. G. M. , NF Railway, Assam

2012-01-30

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 23-11-2011, passed, in Criminal Appeal No. 16(2) of 2008, by the learned Additional Sessions Judge, FTC No. 1, Tinsukia, dismissing the appeal, and upholding thereby the judgment and order, dated 31.10.2007, passed, in S.R./C.R. 168 of 2005, whereby the learned Special Judicial Magistrate, "1st Class (Railway), Tinsukia, convicted the accused-appellants under Sections 3(a) and 4 of the Railway Properties (Unlawful Possession) Act (hereinafter referred to as 'the RP(UP) Act') and sentenced them to undergo simple imprisonment for 1 (one) month with fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of 10 (ten) days. Aggrieved by their conviction and the sentence passed against them, by the learned trial Court and dismissal of their appeal preferred there against, the petitioner has put to challenge, in this revision, the findings of guilt reached against them and also the sentence passed in consequence thereof. 2. The case of the complainant, as against the accused- petitioners based on the offence report, may in brief, be described thus: A ladder with platform, which is, ordinarily, attached to the signal post of the Railways was found missing from the Duliajan Railway Colony on 08.02.2005 and an information was given, in this regard, by the Railways to the Railway Police Protection Force (in short, 'the RPF'. On 10-02-2005, on receiving the information from a reliable source that some stolen railway materials had been kept concealed in the scrap shop of the accused-petitioner, namely, Joy Prakash Gupta, situated at Kamalabari Road, Duliajan, Dibrugarh, Sub-Inspector of Police N. Saikia accompanied by his team of RPF personnel, arrived at the said scrap shop at about 3 p.m., but did not find the accused-petitioner, Joy Prakash Gupta, present there. However, one person, who was present at the said scrap shop, introduced himself as Md. Baharul Islam land claimed that he was an employee of Joy Prakash Gupta, owner of the said scrap shop. Having so introduced himself as an employee, Baharul Islam informed the team of the police personnel that Joy Prakash Gupta would not come, to the shop on that day and that in his absence/he (Md. Baharul Islam), as an employee of Joy Prakash Gupta, had been looking after and would look other the said scrap shop. Having so introduced himself as an employee, Baharul Islam informed the team of the police personnel that Joy Prakash Gupta would not come, to the shop on that day and that in his absence/he (Md. Baharul Islam), as an employee of Joy Prakash Gupta, had been looking after and would look other the said scrap shop. The team of police personnel, headed by Sub-Inspector of Police, N. Saikia, then, conducted a search at the premises of the said scrop shop in presence of said Baharul Islam and one independent witness, namely, Dharmeswar Das and recovered therefrom one set of ladder platform of distant signal and one ladder of signal post. On quarries being made by the police personnel, the said Baharul Islam failed to give any satisfactory reply as regards the source of procurement of the sold items nor could he produce any document in support of his possession of the said properties. Treating that the said materials were railway properties and the same were lying in unlawful possession at the said scrap shop, the said materials were seized and a seizure list, in this regard, was prepared, whereupon Baharul Islam was taken into custody and on information, in writing, was lodged with the Police Station concerned and a case was registered against two persons, namely, Baharul Islam and the said Joy Prakash Gupta. On completion of investigation, an offence report was submitted against the two accused aforementioned. However, during the course of investigation, accused Banarul Islam absconded and could not, as a sequel thereof, tried. 3. During trial, charges, under Sections 3(a) and 4 of the RP(UP) Act, were framed against the accused-petitioners. To the charges, so framed, the accused-petitioners pleaded not guilty. 4. In support of their case, prosecution examined altogether 8 (eight) witnesses. The accused-petitioner was, then, examined under Section 313, Cr PC and in his examination aforementioned, they denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of total denial. The defence too adduced evidence by examining one witness. On conclusion of the trial, the learned trial Court held the accused-petitioner guilty of the offences charged with. The learned trial Court convicted the accused-petitioners accordingly and passed sentence against them as mentioned above. 5. An appeal, as indicated above, was preferred by the accused-petitioners. The defence too adduced evidence by examining one witness. On conclusion of the trial, the learned trial Court held the accused-petitioner guilty of the offences charged with. The learned trial Court convicted the accused-petitioners accordingly and passed sentence against them as mentioned above. 5. An appeal, as indicated above, was preferred by the accused-petitioners. Since the appeal has been dismissed, this revision has been filed by the accused-petitioners putting to challenge the findings of guilt reached against them and the sentence passed in consequence thereof. 6. I have heard Mr. N.K. Baruah, Learned Counsel for the accused-petitioners, and Mr. J. Singh, learned Standing Counsel, N.F. Railways, I have also heard Mr. K. Munir, learned Addl. Public Prosecutor, Assam. 7. While considering the present revision, what is of utmost importance to note is that with regard to the question as to whether the accused-petitioner was the owner of the said scrap shop at the relevant point of time, there is no credible and clinching evidence on record inasmuch as the only evidence, which has come on record, in this regard, is the alleged statement of accused Baharul Islam that Joy Prakash Gupta was the owner of the said scrap shop; but in view of the fact that the said Baharul Islam absconded and could not be examined as a witness, the statement allegedly made by Baharul Islam as against the accused-petitioner, Joy Prakash Gupta, to the effect that Joy Prakash Gupta was the owner of the said shop, is nothing, but hearsay, particularly, when none of the witnesses, examined by the prosecution, knows personally or could say from his personal knowledge that it is the accused-petitioner, Joy Prakash Gupta, who was the owner of the said shop. This apart, yet another crucial question, which ought to be answered, is : Whether there is any evidence to show that the present accused-petitioners were found in unlawful possession of railway properties. The moot question, therefore, which falls for consideration, is as to whether the seized articles were railway properties. 8. While considering the questions posed above, it needs to be noted that PW 1, who is the Gateman of Duliajan Railway Colony, has deposed that on 08-02-2005, while coming to attend his duty, he found that the ladder, which was attached, to the signal post, was missing. 8. While considering the questions posed above, it needs to be noted that PW 1, who is the Gateman of Duliajan Railway Colony, has deposed that on 08-02-2005, while coming to attend his duty, he found that the ladder, which was attached, to the signal post, was missing. Having noticed that the ladder post was missing, PW 1 informed the Signal-in-Charge about the said fact. In his cross-examination, PW 1 has clarified that generally, the ladders are of black colour. In his cross-examination, PW 1 has clearly deposed that he is not aware if the said ladder could be recovered. 9. Thus, the evidence of PW 1 does not prove that the seized ladder was the ladder, which was found missing by PW 1. 10. Coming to the evidence of PW 2, who works as Electrical-Signal Maintainer, Duliajan NF Railway, I find that this witness has deposed that on 08-02-2005, he was informed by PW 1 that the signal post and its ladder with platform had been stolen away and, on receiving this information, he informed his superior officers and, thereafter, on 10-02-2005, at about 2 p.m., the complainant, Mr. Saikia, informed him (PW 2) that they had come to know that the stolen properties had been kept concealed and asked him (PW 2) to accompany the RPF team and when they all reached the scrap shop of the accused-petitioner, Joy Prakash Gupta, the said accused-petitioner was not present there, but one Baharul Islam was present there and, in his presence, the RPF personnel conducted a search and recovered the said stolen ladder and the platform. 11. In his examination, PW 2 has clarified that it was accused Baharul Islam, who had informed the RPF personnel that Joy Prakash Gupta was the owner of the said shop, but he (accused Baharul Islam) could not show any paper or document in this regard. 12. In his cross-examination, PW 2 has clearly stated that the stolen properties, which had been recovered, were not painted and that there was no insignia of the railways on the said materials. 13. What is, now, of immense importance to note is that the evidence of PW 2 collides against the evidence of PW 1 inasmuch as PW 1 has deposed that the ladder post was of black colour; whereas PW 2 has opposed that the said ladder post was not painted. 13. What is, now, of immense importance to note is that the evidence of PW 2 collides against the evidence of PW 1 inasmuch as PW 1 has deposed that the ladder post was of black colour; whereas PW 2 has opposed that the said ladder post was not painted. Though PW 2 claims that the said ladder post was the stolen one, he could not reveal the basis of his identification. His evidence does not, therefore, prove that the seized properties were railway properties. 14. In tune with the evidence of PW 2 is the evidence of PW 3 inasmuch as PW 3, who is a constable, could not say if the accused-petitioner, Joy Prakash Gupta, was the owner of the said shop or not inasmuch as he also derived information, same as others, from the statement of Baharul Islam that the said accused-petitioner was the owner of the said shop. As far as the seizure is concerned, PW 3 could not give any evidence to show that the seized properties were railway properties. This witness's evidence, thus, neither proves the accused-petitioner, Joy Prakash Gupta, as the owner of the said shop, where the railway properties were allegedly found, nor does his evidence prove that the seized articles were railway properties. 15. Coming to the evidence of PW 4, who is the complainant, his evidence merely shows that on the basis of the information received that the stolen properties were lying at a scrap shop, he took his team there and, on arriving there, he met there Baharul Islam, who introduced himself as an employee of the accused-petitioner, Joy Prakash Gupta, and, on the basis of search conducted, he found the said ladder post and seized the same. As far as this witness is concerned, he personally has neither knowledge that the accused-petitioner, Joy Prakash Gupta, was the owner of the said shop at the relevant point of time nor did this witness know that the articles, which he had seized, really belonged to railways or not. 16. No wonder, therefore, that this witness has got the said materials examined by PW 5 so as to ascertain if the seized articles were railway properties. At any rate, the evidence of PW 4 does not prove the accused-petitioner, Joy Prakash Gupta, as owner of the said shop nor does his evidence prove that what he had seized were railway properties. At any rate, the evidence of PW 4 does not prove the accused-petitioner, Joy Prakash Gupta, as owner of the said shop nor does his evidence prove that what he had seized were railway properties. 17. When I turn to the evidence of PW 5, who claims that the seized properties were railway properties, I notice that this witness has deposed that the seized articles are used for maintenance of signal post of railways. In his cross-examination, PW 5 has admitted that there is no mark of any kind, on the seized materials, to show that the seized materials were railway properties. In the face of this admission, there could not have been a definite and/or positive conclusion that the seized materials were railway properties merely because PW 5 has claimed the seized materials to be the railway properties, particularly, when the basis of identification has not been revealed or could not be revealed by even PW 5 and when there is no assertion in the evidence on record by PW 5 or by any other prosecution witnesses that the seized articles are exclusively used in the railways. Thus, the evidence of PW 5 having not been able to establish that the seized articles were railway properties, it is well-nigh impossible to uphold the conclusion of the learned Courts below that the seized articles were railway properties. That apart, there is no evidence on record, as already discussed above, proving the accused-petitioner, Joy Prakash Gupta/as the owner of the said shop at the relevant point of time. 18. When one comes to the evidence of PW 6, who is a driver, his evidence does not much help the prosecution's case inasmuch as he merely drove PW 4 and his team of RPF personnel to the said scrap iron shop, wherein accused Baharul Islam had allegedly claimed that the shop belonged to Joy Prakash Gupta. 18. When one comes to the evidence of PW 6, who is a driver, his evidence does not much help the prosecution's case inasmuch as he merely drove PW 4 and his team of RPF personnel to the said scrap iron shop, wherein accused Baharul Islam had allegedly claimed that the shop belonged to Joy Prakash Gupta. As already indicated above, when Baharul Islam has not been examined as a witness, the evidence of PW 6 as to what Baharul Islam had stated or that Baharul Islam claimed that the accused-petitioner, Joy Prakash Gupta, was the owner of the said shop is nothing, but hearsay and ought to have been kept excluded out of the purview of their consideration by the learned Courts below on the ground that the evidence, given by PW 6 and other witnesses with regard to the question as to who is the owner of the said shop, was nothing, but hearsay and inadmissible in law. Moreover, when PW 6 does not work in the railways his claim that the seized articles were railway properties has really no value at all. 19. The above discussions on record brings me to the evidence of PW 7, who was, at the relevant point of time, Head Constable at the RPF and who had gone with Sub-Inspector N Saikia and the said team of RPF personnel to the said scrap shop. This witness too does not personally know if the accused-petitioner, Joy Prakash Gupta, was the owner of the said shop at the relevant point of time nor does he work in the railways and could not, therefore, give any evidence in support of his claim that what had been seized were nothing, but railway properties. This witness's evidence too, thus, does not, therefore, implicate the accused-petitioner. 20. Close on the heels of the evidence of PW 7, PW 8, who is the President of Tipling Gaon Panchayat, has deposed that he had given a certificate to the effect that the said scrap iron shop belongs to the accused-petitioner, Joy Prakash Gupta, inasmuch as the said shop is located within the area of the said Panchayat and this certificate had been given on the basis of a document and, in terms of the said document, the said shop was situated on the land of accused Pritam Barua. In his cross-examination, PW 8 has blown up his own certificate by admitting that he personally does not know as to whose shop it was. Hence, this witness's evidence could not have been taken as the proof of the fact that the said shop belongs to the accused-petitioner, Joy Prakash Gupta, at the relevant point of time. 21. In fact, in his cross-examination, PW 8 has completely destroyed the credibility of the certificate, which he had given to the RPF personnel claiming that the said shop belongs to the accused-petitioner, Joy Prakash Gupta, because he deposed, in no uncertain words, in his cross-examination, that on subsequent inquiry, he found that he could not have confidently certified or claimed that the said land belonged to, and/or owned by, the accused-petitioner, Pritam Barua, and that his statement that the said land belong to accused Pritam Barua was based on whet he had heard from some others. It is the positive evidence of this witness (PW 8) that he, personally, does not know whose shop it was and that it was because of the fact that the RPF personnel had asked him (PW 8) to give a certificate that he had reluctantly given the certificate. 22. What emerges from the above discussion, if I may reiterate, is that there is no admissible, credible and clinching evidence on record to show, far less prove, that the said scrap shop belonged to, or was owned by, the present accused-petitioner, Joy Prakash Gupta, at the relevant point of time or that the said shop was, at the relevant point of time, in the possession of the present accused-petitioner, nor is there any evidence to hold, confidently and boldly, that the seized materials were railway properties. 23. As far as the accused-petitioner, Pritam Baruah, is concerned, there is really no evidence as against him for the purpose of upholding his conviction under Section 3(a) and/or 4 of the RP(UP) Act. His conviction cannot, therefore, be sustained and needs to be set aside. 24. In the backdrop of the above discussion of the evidence on record, there can be no escape from the conclusion that the findings of guilt, reached against the accused-petitioners by the learned trial Court, were not based on the evidence on record and ought not to have been sustained by the learned appellate Court. 24. In the backdrop of the above discussion of the evidence on record, there can be no escape from the conclusion that the findings of guilt, reached against the accused-petitioners by the learned trial Court, were not based on the evidence on record and ought not to have been sustained by the learned appellate Court. Thus, the learned trial Court committed serious illegality in convicting the accused-petitioners and the learned appellate Court perpetuated the illegality by upholding the conviction of the accused-petitioners and the sentence passed against them. 25. In the result and for the reasons discussed above, this revision succeeds. The impugned judgment and order of conviction and sentence passed by the learned trial Court are hereby set aside and, in consequence thereof, the impugned judgment and order of the learned appellate Court also fail and the same shall accordingly stand set aside. The accused-petitioners are held not guilty of the charges framed against them and they are acquitted of the same. 26. The accused-petitioners are hereby directed to be set at liberty forthwith unless they are required to be detained in connection with any other case. The bail bonds of the accused-petitioners shall stand cancelled and their sureties shall stand discharged. With the above observations and directions, this revision petition shall stand disposed of.