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2013 DIGILAW 142 (KAR)

STATE BY R. P. F. , HUBLI v. SHIVAKUMAR

2013-02-07

B.V.PINTO

body2013
JUDGMENT B.V. PINTO, J.-This appeal is filed challenging the judgment dated 26.06.2006 passed by the JMFC Court-I, Hubli in C.C. No. 2266/1996, acquitting the respondents for the offence punishable under Section 3 (a) of RP(UP) Act. 2. It is the case of the prosecution that the South Central Hubli Division of Railways auctioned six condemned railway wagons and accused No. 6 was the successful bidder in the said public auction. The said lot is numbered as AGL21 / K and the same was kept in Amargol Railway yard as per the delivery order No. UBL/K-131 dated 20.03.2005. The accused No. 6 after purchasing the said wagons which are double wagons, appointed accused No. 1 as his power of attorney holder to take delivery of the auctioned railway wagons from the scrap yard of Amargol Railway Station. Accused Nos. 2 to 5 are the Railway Officials, who were appointed to oversee the delivery of the auctioned goods to accused No. 1 correctly and also they were authorised to issue the challens. It is the case of the prosecution that on 30.03.1995, when the accused No. 1 took the delivery of the aforesaid lot, which contains only six doubled wagons, after taking auctioned property, the accused took two extra M.G. truck bogies with wheel sets on 05.04.1995 and loaded the same in a lorry bearing registration No. CAS-4321 and again in the lorry being registration No. CAS-4231 on 07.04.1995 from the Stock of M.G. Truck bogies kept at Amargol Railway Station. The said two wagons were taken discretely and transported the same to Madras alongwith the purchased wagons and sold to unknown person. Subsequently, it was disclosed that two wagons were missing alongwith the six wagons, which were already taken as per the auction sale. When accused No. 2 went to the railway station at Amargol, it was disclosed that two bogies containing 8 numbers of wheel sets were missing. On suspicion the accused No. 1 was arrested on 11.08.1995 and on the basis of the information given by the accused No. 1, it was disclosed that accused No1 had committed the theft of two truck bogies with extra wheels, which did not pertain to his lot and thereafter loaded the same in a vehicle No. CAS-4321 and CAS-4231 and transported the same. He has confessed that accused Nos. 2 to 5 had witnessed while loading the materials from the railway yard. He has confessed that accused Nos. 2 to 5 had witnessed while loading the materials from the railway yard. Based on the information given by the accused, investigation is conducted and charge sheet came to be filed against all the six accused persons. During the pendency of the trial, the accused No. 6 had died and accused No. 3 was not found and a case in C.C. No. 1398/2007 is registered against accused No. 3 with a split up charge sheet. Accused Nos. 1, 2, 4 and 5 have faced the trail. 3. The prosecution in order to prove the case has examined in all 17 witnesses as PW1 to PW17, got marked Exs.P1 to P54 and produced MO1-sample railway material. The defence of the accused was one of total denial. However, after hearing the prosecution and the defence, the learned Magistrate was pleased to hold that the prosecution is not able to prove the case against the accused beyond reasonable doubt and recorded an order of acquittal. The State has filed this appeal challenging the said order of acquittal. 4. Heard Shri Vinayak S. Kulkarni, learend High Court Government Pleader appearing for the appellant-State, Sri. V.G. Bhat, learned counsel appearing for the respondent No. 2 and Sri. R.P. Chatni, learned counsel for the respondent Nos. 3 and 4. 5. The learned High Court Government Pleader appearing for the appellant-State submits that the evidence of the prosecution witnesses indicate that the accused No. 1 was appointed as an agent for accused No. 6 to transport the railway bogies purchased by accused No. 6 in the public auction and accused No. 1 while so transporting the six bogies purchased by accused No. 6 has illegally removed two more bogies and has sold them by loading it to the lories from the railway yard. He submits that the evidence indicates that the accused Nos. 2 to 5 have connived at the theft committed by the accused No. 1 at the instigation of the accused No. 6 and had clandestinely removed two extra bogies without the consent of the Railway Department. Hence, the said act of the accused amounts to an offence under Section 3 of the RP (UP) Act. It is his submission that the evidence of witnesses clearly establishes the offence and, therefore, the accused ought to have been convicted by the learned Magistrate. Hence, the said act of the accused amounts to an offence under Section 3 of the RP (UP) Act. It is his submission that the evidence of witnesses clearly establishes the offence and, therefore, the accused ought to have been convicted by the learned Magistrate. He, therefore, submits that the accused may be convicted by allowing the appeal. 6. The learned counsel appearing for the respondents-accused on the other hand submit that the learned Magistrate has come to a conclusion that the prosecution has not proved the case of the accused No 1 who was authorised to lift the goods from the railway yard and further there is no evidence to show that the accused No. 1 had unauthorisedly lifted two extra bogies from the railway yard and or that the same is carried in the lorry. The evidence to this effect is not conclusive since the property so committed theft of was not recovered during the investigation and, therefore, there is no material to indicate that in fact the theft has happened. Unless, the property involved in the offence is seized, the Court cannot convict the accused persons. Hence, he submits that the prosecution having failed to bring home the guilt of the accused and has rightly acquitted the accused. Therefore, the counsel submits that this appeal has no merit and prays that the same may be dismissed. 7. The prosecution in this case commenced with the lodging of the complaint by one P.Y. Bankapur, who was working as the Chief Train Examiner in the Indian Railways. He has stated in the complaint that when they inspected the Amargol yard, they observed that there were 24 M.G. bogies with wheel sets instead of 26 M.G. bogies, which means there were shortage of two bogies. When they inspected the lot, they found 16 wheel sets instead of 24 wheel sets and there was a shortage of 8 wheel sets. Hence, he gave a report on 08.07.1995, which is termed as theft report. He has stated in the complaint, instead of total 76 wheel sets and 26 bogies there were only 62 wheel sets and 24 bogies. Hence, he has stated that 2 bogies and 8 wheel sets are missing and he suspected that the said wheel sets have been committed theft of by A1. He has stated in the complaint, instead of total 76 wheel sets and 26 bogies there were only 62 wheel sets and 24 bogies. Hence, he has stated that 2 bogies and 8 wheel sets are missing and he suspected that the said wheel sets have been committed theft of by A1. On receipt of the said complaint, the Police have registered a case on 08.07.1995 and commenced the investigation. 8. PW1 states before the Court that the truck bogies were auctioned in the year 1994 and on receipt of the theft report, a joint survey was made and on the same day accused No. 2 was directed by him to conduct the survey once again of the entire materials in Amargol Railway Yard alongwith one P.Y. Bankapur and Assistant of Sub Inspector of RPF, Hubli. Thereafter, it is in the evidence of PW1 that he made an enquiry on 11.08.1995, he secured accused No. 1-Shivakumar. It is his case that accused No. 1 confessed about the removal of two more truck bogies with wheel sets on 07.04.1995 by cutting them with the assistance of CW7 and CW8 and mixed in the purchased wagon parts by his assistants and the same was loaded in the trucks and sent the same to Madras. PW1 also states that accused No. 1 confessed of having stolen the railway bogies and thereafter lifting the same from the Amargol Railway Yard, the total worth of which was Rs. 32,250/-. It is the further case of PW1 that he has conducted the investigation into the matter and thereafter found the involvement of accused Nos. 2 to 4, who were the officials of the department in permitting the accused No. 1 to remove two wagons without the consent of the Indian Railways. In the cross-examination, PW1 has stated that the Southern Railway has issued a stock verification manual, which is marked as Ex.D2. It is suggested to him that he is deposing falsely at the instance of the department officials. 9. PW2-Bindumadhav K. Korahalli is the railway employee. He states that there was a shortage of two wagons. However, in the cross-examination, he states that he has not seen the wheel sets at any time. 10. PW3-Parasappa Y. Bankapur states about the shortage of two wagons and also the value of stolen wagons. 9. PW2-Bindumadhav K. Korahalli is the railway employee. He states that there was a shortage of two wagons. However, in the cross-examination, he states that he has not seen the wheel sets at any time. 10. PW3-Parasappa Y. Bankapur states about the shortage of two wagons and also the value of stolen wagons. However, in the cross-examination, he states that the Railway Yard is an open yard, where any body can come and go. He also admits that no specific security is appointed at the place from where the theft of wagons took place. 11. PW4-L.H.Rolli is the Police Inspector, who conducted the joint survey at the Railway Station as per Ex.P3. He has also deposed regarding the delivery of wagons to accused No. 1 and further the part played by accused Nos. 4 and 5 in the entire transaction. Even this witness admits that there was no security deployed on the Railway Yard to protect the railway wagons. 12. PW5-Srikant H. Kulkarni sates that the accused No. 1 has given confession statement to the effect that he had sold the materials for Rs. 32,250/-. 13. PW6-B.Vijaykumar is the businessman and has stated that as requested by accused No. 1 he had sent two laborers for cutting the railway materials at the Alnawar railway station. He also supported the case of the prosecution. However, he has not stated the names of the said laborers, who had actually come to the spot to cut and load the railway materials. 14. PW7-Vishnu Jituri is the highest bidder in the auction, but he has turned hostile to the case of the prosecution. 15. PW8-G.Satyam is the another auction purchaser, who has purchased the separate lot in the auction. 16. PW9-G.M.Jartaghar is the owner of the weighing bridge, who has weighed the scrap materials and the lorry and gave a slip as per Ex.P45. 17. PW10-P.Ramamurthy has stated the facts regarding the seizure of the lorry and the drawing up of panchanama. He has stated that there was no security in the open yard of the Railway station. 18. PW11-Gurubasappa Kapse has stated that he had conducted the part of investigation and recorded the statement of certain witnesses. 19. PW12-M.Mohammed Shukur, he is an employee of the Railway Department and he has issued a letter to RPF regarding witnessing of the auction. He has stated that there was no security in the open yard of the Railway station. 18. PW11-Gurubasappa Kapse has stated that he had conducted the part of investigation and recorded the statement of certain witnesses. 19. PW12-M.Mohammed Shukur, he is an employee of the Railway Department and he has issued a letter to RPF regarding witnessing of the auction. He has stated regarding the persons, who have purchased in the auction and the respective lots and also regarding the delivery of the auctioned lots. However, in the cross-examination, he has admitted that he does not have personal knowledge of the matter, but he is deposing on the basis of the records. 20. PW13-K.M.Muralikrishna has stated before the Court that accused No. 4 was deputed to deliver the lot No. 21 on 07.04.1995 and he has given a letter as per Ex.P53. However, in the cross-examination, he has admitted that the said Ex.P53 is given at the instance of the RPF. He has also stated that he has no personal knowledge in respect of the case. 21. PW14-Kashappa Sakalappa is the driver of the vehicle and has supported the case of the prosecution so far as the transportation of Railway materials and weighment conducted in respect of the transported materials in the Laxmi Weigh Bridge. He has also stated that one Jainar and Gupta took the delivery of the goods. 22. PW15-Rameshchandra Punetha is the Metal Manager of the Railway Department, who has spoken about the Lot No. AGL/21/K and has stated that he had deputed his staff for witnessing the delivery of cut-lot and for checking the materials and removal from the Railway property. He has further stated that the successful auction bidder has taken the materials. 23. PW16-Mahesh Meharaj Peth is the owner of the weighing machine and he has stated regarding the weighing of the lorry ME Nos. 5243 and 5242 and that weighing of different lorries was done on different dates. However, in the witness box, he further says that he has no particulars of weighment of a particular lorry and that he has no personal knowledge about which of the lorry contained what quantity of the scrap materials. 24. PW17-Shaik Rahmutulla is the RPF Inspector, who has stated that he has assisted the Investigating Officer during the investigation. However, in the witness box, he further says that he has no particulars of weighment of a particular lorry and that he has no personal knowledge about which of the lorry contained what quantity of the scrap materials. 24. PW17-Shaik Rahmutulla is the RPF Inspector, who has stated that he has assisted the Investigating Officer during the investigation. However, he has stated that no person had given voluntary statement to him in respect of this case. 25. Based on the above evidence on record, the learned Magistrate has held that the evidence produced by the prosecution is not sufficient to connect the stolen property and hence, he has recorded an order acquittal. 26. On a re-appreciation of the evidence on record, it is firstly seen that the stolen articles have not been recovered nor produced before the Court and no one has identified the materials said to have been stolen by the accused. Secondly, there is no proper documents to show as to what was the stock available as on the date of theft and the stock available subsequent to the date of theft to ascertain the exact number of the railway bogies committed theft of. It is in the evidence of all the witnesses that the bogies were kept in an open yard and, therefore, the same was accessible to the general public. Unless, it is shown that the accused and accused themselves, who have carried the materials there cannot be an order of conviction. The evidence adduced by the prosecution is not sufficient to hold that the accused No. 1 has transported two bogies more than what is purchased by the accused No. 6 and hence, the Court could not have passed any order other than acquitting the accused. 27. I have gone through the entire evidence on record and also the materials placed by the prosecution. I have also gone through the judgment of the trail Court. On a proper re-appreciation of the entire materials on record and the grounds in which the learned Magistrate has acquitted the accused, I am of the opinion that no other view can be taken than the one which has been taken by the learned Magistrate and hence, this appeal deserves to be dismissed. Accordingly, the appeal is dismissed.