JUDGMENT : This appeal is directed against the judgment of acquittal of the respondents for the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. 2. The case of the prosecution is that, on credible information that the property belonging to the railways was found in City Driving School, PW.1 - the Police Inspector then working in RPF, Mysore obtained a search warrant and searched the premises belonging to Accused No.1. Accused No.2 was running a driving school in the said premises. Five rail pieces were found erected in the fence, surrounding the property. They were seized under a search list - Ex.P2. It was ascertained that the said property belonged to the Railways as per the report of PW.4, the Section Engineer, Railway Department. A complaint was lodged before the Magistrate. The learned Magistrate framed common charge against both the accused. The accused denied the charge and faced trial. 3. In order to bring home the guilt of the accused, the complainant/prosecution examined 8 witnesses and produced in evidence 15 documents as per Ex.P1 to P15. Material objects namely, 5 rail pieces were marked as M.O.1 to 5. In the course of cross-examination of prosecution witnesses, statement of PW.2 was marked as Ex.D1 and a paper cutting containing the auction sale notice published in Vijaya Times was marked as Ex.D2. 4. On considering the above evidence, the learned Magistrate found that the evidence adduced by the prosecution is contradictory and unreliable and further, placing reliance on the paper publication, the learned Magistrate was of the opinion that the properties in question were purchased by the accused in a public auction and therefore, the offence charged against them was not made out and consequently, acquitted the accused of the above charge. 5. Sri Vijaya Kumar Majage, learned Addl.SPP contends that the judgment rendered by the Trial Court is improper and contrary to the material on record. The learned Magistrate has failed to appreciate the evidence in proper perspective. The report issued by PW.4 - the Section Engineer, clearly establish that the seized property was “railway property”. Section 3 of the Railway Property (Unlawful Possession) Act, casts burden on the accused to offer explanation for possession of the railway property. Accused have failed to offer any such explanation. In the said circumstance, the learned Magistrate has committed grave illegality in acquitting the accused. 6. Section 3 of the Railway Property (Unlawful Possession) Act, casts burden on the accused to offer explanation for possession of the railway property. Accused have failed to offer any such explanation. In the said circumstance, the learned Magistrate has committed grave illegality in acquitting the accused. 6. Further, he submits that Ex.D1 is not sufficient to create doubt on the case of the prosecution. It was a mere paper publication. In the absence of any evidence to show that pursuant to the said publication any of the accused persons had purchased the railway properties and got the same erected in the fence, it was not proper on the part of the learned Magistrate to hold that the case of the prosecution is rendered doubtful and hence, he pleads reversal of the impugned judgment. 7. Sri G.Balakrishna Shastry, learned counsel appearing for respondent no.1, at the outset, submitted that the identity of the property is not established. There is no clear proof to show that Accused No.1 was the owner of the property at the relevant point of time. The prosecution has proceeded on the assumption that Accused No.1 had inherited the property from his father. The charge framed against the accused is defective. The evidence produced by the prosecution suffers from irreconcilable contradictions and inconsistencies which have been properly taken into consideration by the learned Magistrate while acquitting the accused and therefore, there is no reason to interfere with the impugned judgment. 8. Learned counsel Sri H.B.Narayana appearing for respondent No.2 is absent and he has not addressed any arguments on behalf of respondent No.2. 9. Considered the submissions and examined the records. 10. On going through the records, I find that the very charge framed against the accused is defective. A Joint charge has been framed against both the accused. It reads as under: xx xxx xxx 11. The contents of the said charge indicate that both the accused were found in possession of five pieces of narrow gauge rails near railway station behind RMC Yard. There is nothing in the said charge to indicate that the fence surrounding the property of Accused no.1 was erected with five rail pieces belonging to the Railways. But on contrary to this charge, the evidence is let in as if the railway properties were found erected to the fence erected by Accused No.1. There is nothing in the said charge to indicate that the fence surrounding the property of Accused no.1 was erected with five rail pieces belonging to the Railways. But on contrary to this charge, the evidence is let in as if the railway properties were found erected to the fence erected by Accused No.1. This defect in my view, goes to the very root of the case, vitiating the entire trial. 12. Secondly, there is no clear evidence to show that Accused No.1 was the owner of the property wherein the said rail pieces were stated to have been found. The only document produced by the prosecution in support of this fact is Ex.P10, the Khata extract. This document on the face of it, stands in the name of Sri A.N.Ram, father of Accused No.1. Apart from Ex.P10, no other document is available to show that Accused No.1 has inherited the properties and as on the date of the alleged search, Accused No.1 was the owner of the said property. Accused No.1 is prosecuted solely on the basis that the rail pieces were found surrounding his land. When there is no clear evidence to show that Accused No.1 was the owner of the land, the charge against Accused No.1 cannot stand. 13. Even if it is assumed that the property belonging to Accused No.1 was found surrounded with a fence containing five rail pieces, the description of the property indicate that adjoining the said land there was another piece of land belonging to other owners. Under the said circumstances, it was incumbent to the prosecution to adduce clear and cogent evidence to show that the fence separating the two properties was erected by Accused No.1. In the absence of any such evidence, merely on the ground that the fence separating the two properties contained five rail pieces, Accused No.1 cannot be made answerable to the above charge. 14. Section 3 of the Railway Property (Unlawful Possession) Act, 1968 defines the ingredients of the offence. As per this Section, whoever commits theft, or dishonestly misappropriates or is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punished with the sentence as provided therein. As per this Section, whoever commits theft, or dishonestly misappropriates or is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punished with the sentence as provided therein. But in my view, the evidence on record is not sufficient to hold that Accused No.1 was in possession of the railway property as on the date of alleged search. 15. The contention of the learned Addl.SPP that the confessional statement of Accused No.1 is admissible in evidence and this document is sufficient to bring home the guilt of the Accused No.1, cannot be accepted. The prosecution has relied on Ex.P10 in proof of the ownership of the property. This document clearly indicates that as on the date of commission of offence, one Sri A.N.Ram was the owner of the said property and not Accused No.1. This document completely negates the contents of the confessional statement. Even otherwise, the other circumstances discussed above would give rise to a benefit of doubt in favour of Accused No.1. Therefore, I am of the view that the Trial Court has rightly acquitted Accused No.1 of the above offence and I do not find any reason to differ with the view taken by the Trial Court in this regard. 16. In so far as the involvement of Accused No.2 is concerned, the specific case of the prosecution is that Accused No.2 was running a driving school in the said premises. As already stated above, the charge against Accused No.2 was that he was found in possession of five rail pieces belonging to the railways. This is contrary to the very case of the prosecution that Accused No.2 was merely running a driving school in the said property. He had no interest whatsoever in the property, nor is there any material to show that Accused No.2 was instrumental in erecting the fence surrounding the properties wherein he was running a driving school. For want of such material, the Trial Court was justified in acquitting the accused. 17. On reappreciating the entire material on record, I do not find any justifiable reason to interfere with the findings recorded by the Trial court. For want of such material, the Trial Court was justified in acquitting the accused. 17. On reappreciating the entire material on record, I do not find any justifiable reason to interfere with the findings recorded by the Trial court. Even though the prosecution has adduced reliable material to show that the seized property is the railway property, yet in the absence of any evidence to show that the said property was found in the possession of Accused No.1 and 2 at the relevant point of time, it has to be held that the prosecution/complainant has failed to bring home the guilt of the respondents for the offence charged against them. Consequently, I do not find any reason to interfere with the impugned judgment. Accordingly, appeal is dismissed.