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2016 DIGILAW 1136 (GAU)

BIDYAT DUTTA v. STATE OF ASSAM

2016-12-15

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. H.C. Barman, learned counsel for the petitioners as well as Mr. B. Sarma, learned Addl. P.P. Assam. Also heard Mr. A.K. Sarkar, learned Standing Counsel, Railways. 2. Prosecution story in a nutshell is that acting upon an information of theft of railway property, Railway Protection Force, Jabalpur carried out an ambush operation on 11.10.94 at midnight and three persons namely Babla Das, Satya Majumdar and Omarjit Singh were arrested while they were trying to take out a drum containing high speed diesel from the Badarpur Railway Locoshed. The aforesaid three accused disclosed the name of other accused i.e. Amar Guha and Sri Bidyat Dutta to be involved in the aforesaid incident. But the said persons could not be apprehended as they have fled way in the darkness. 3. As the arrested persons allegedly could not show any document relating to the drum under their possession a complaint was filed by SI RPF Bodarpur and accordingly, a case under Section 3(a) of the Railway Property (Unlawful Possession) Act was registered and three of the accused apprehended on the spot and was arrested. Finally, offence report in the form of final form was submitted against all five accused persons. Thereafter, the learned Special Magistrate, Railway Tinsukia took cognizance of the offence against the accused persons and processes were issued to the accused persons to face the trial. However, process against two accused persons namely Satya Majumder and Amarjit Singh being not executed, the case was split up against two of them and the trial was taken up against the other three accused persons namely, Sri Bidyat Dutta, Amar Guha and Babla Das. 4. The charge was framed under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and the offence was read over to them to which they pleaded not guilty and claimed to be tried. During the course of trial prosecution examined three witnesses whereas defence examined none. On completion of the trial the learned Special Railway Magistrate, Tinsukia found guilty of the offence charged and convicted all above accused and sentenced to pay a fine of Rs.1500/- each, in default s.i. for three months by its order dated 25.6.2004. The appeal preferred against the aforesaid judgment was dismissed by the learned Sessions Judge, Karimganj by its order dated 29.4.2006 in criminal appeal no.27(3)/2004. 5. The appeal preferred against the aforesaid judgment was dismissed by the learned Sessions Judge, Karimganj by its order dated 29.4.2006 in criminal appeal no.27(3)/2004. 5. Being dis-satisfied with the aforesaid judgment and order the present revision petition has been preferred by the accused petitioners Sri Bidyat Dutta, Sri Amar Guha and Babla Das. The learned counsel for the petitioner has pressed the matter on behalf of the accused petitioner Sri Bidyat Dutta and has not pressed for others. 6. Considered the submissions of the learned counsel for the petitioners that the aforesaid judgment is bad in law as there is no independent witness to the aforesaid seizure and there is nothing to say that it was exclusively railway property or stolen property of Railways. That apart, all the prosecution witnesses are police personnel who allegedly participated in the ambush operation and there evidence cannot be relied on. Further, the statement of other accused persons that has been recorded cannot be used as a confessional statement as against the present petitioners, as has been relied by the learned Court below while arriving at the decision. Moreover, there is no positive evidence to prove the involvement of the present two accused petitioner with the aforesaid offence. 7. The learned counsel for the N.F.Railway has submitted that the evidence of all the witnesses are corroborating in nature and they have fully proved the seizure of the articles which were railway property and the statement of the other accused persons made voluntarily can be accepted as their confessional statement to suggest the complicity of the present accused petitioner and there is no illegality nor any irregularity in the judgment and orders of both the forums. 8. I have considered the submissions made by the learned for both the parties before this Court. After careful perusal of the evidence on record, it is found that the PW 1 & PW 3, both of them conducting ambush at night on 11.10.2004 and they found 4/5 persons along with thela loaded with barrel drum proceeding towards eastern gate from locoshed and they apprehended those persons and those are Satya Majumdar, Babla Das and Amarjit Singh, who disclosed the names of associates as Sri Bidyat Dutta and Amar Guha and thereafter the drum containing 20 litters of HSD oil was seized through Ext.1 from those three accused persons and the seizure list was prepared. The PW2 who was a fireman at the Badarpur Station has certified that the aforesaid seized oil was railway property and he issued the certificate Ext.2 accordingly. However, the said witness in his cross-examination has stated that the seized oil was not sent for chemical examination and no stock register was maintained in regard to the Barred Drums. 9. From the evidence on record it is found that the seizure was made from the three other accused persons named above and save and except the statement given by those accused persons there is no other evidence to disclose the complicity of the present accused petitioner Sri Bidyat Dutta with the offence alleged. The witnesses failed to identify the present accused person if at all they were along with those arrested accused persons named above. The complicity of the accused person has been projected only on the basis of the statements made by the arrested accused persons but in view of settled principle of law any confessional statement made to police officer cannot be used in evidence against the maker as well as any other persons (co-accused). There is no provision as such in the Railway Property (Unlawful Possession) Act, 1966 to enable a police officer to record such confessional statement and to use the same for the purpose of trial. That being the position, the findings of both the learned Courts below as regards the complicity of the present petitioner Sri Bidyat Dutta is found to be not legally maintainable. It can be held that the prosecution has failed to prove the charge against the present accused petitioner beyond reasonable doubt and he is entitled to get benefit of doubt. In the result, the conviction and sentence as regards the present accused petitioner Sri Bidyat Dutta is set aside and he is acquitted from the charge. 10. The revision is allowed accordingly. Return the LCR forthwith with a copy of the judgment to the learned Court below.