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2019 DIGILAW 581 (GAU)

Jhullu Kumar Das v. Indian Railways

2019-05-10

HITESH KUMAR SARMA

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JUDGMENT : 1. This criminal revision petition has been filed under Sections 397/401 Cr.PC, challenging the legality, propriety and correctness of the judgment and order, dated 17.5.2010, passed by the learned Additional Sessions Judge (FTC), Nagaon in Criminal Appeal No. 13(N)/2007, affirming the order of conviction recorded by the learned trial court of Special Judicial Magistrate, 1st Class (Railway), Tinsukia, in SR/CR Case No. 80/2004 under Section 3(a) of the Railway Property (Unlawful Possession) Act. The learned trial court convicted and sentenced the revision petitioner under Section 3(a) of Railway Property (Unlawful Possession) Act to suffer simple imprisonment for 1 month and to pay a fine of Rs. 2,000/- with a default stipulation. I have heard Mr. A. Choudhury, learned counsel for the revision petitioner, assisted by learned counsel, Mr. D. Bora and Mr. N. Mahajan. I have also heard learned standing counsel for the Railway Department, Mr. B.K. Das. 2. The prosecution case is that, on 8.11.2003, at about 0440 hours, the railway police personnel conducted surprise night check and during such check, they noticed one labourer carrying a big topola (bag), in a longi and entered into the railway quarter No. E- 77/D at Relief Yard Colony, Lumding, which quarter belongs to the railway employee, namely, Jhullu Kr. Das, i.e. the revision petitioner. The aforesaid labourer repeated his visit to the said quarter in the same manner. The police personnel gheraod the said quarter, entered into there, searched the same and could recover 14 various bags containing Atap rice weighing about 700 kgs which were kept in a cooking room attached to the quarter. Neither the labourer nor the occupant of the quarter could produce any document in respect of possession of the aforesaid 700 kgs of Atap rice. Thereafter, they were arrested and the aforesaid 700 kgs of Atap rice were seized from the quarter vide the seizure list prepared. The seizure was made in the presence of the petitioner as well as in presence of other witnesses with their signatures on the seizure list. The labourer had stolen the said rice from the railway wagon and sold it to the revision petitioner. 3. On completion of investigation of the case, the police finally submitted charge-sheet against the revision petitioner for offence under Section 3(a) of the Railway Property (Unlawful Possession) Act. After exhausting all required formalities, the trial commenced. 4. The labourer had stolen the said rice from the railway wagon and sold it to the revision petitioner. 3. On completion of investigation of the case, the police finally submitted charge-sheet against the revision petitioner for offence under Section 3(a) of the Railway Property (Unlawful Possession) Act. After exhausting all required formalities, the trial commenced. 4. The prosecution examined as many as 14 witnesses. Defence also examined 3 witnesses in support of his plea that the rice recovered from his possession belonged to his wife who deals with business of rice and who purchased the same from another businessman, namely, Sankar Kr. Das and the said rice was not stolen rice. In the statement of the revision petitioner, recorded under Section 313 Cr.PC also, he has reiterated the above stand and denied the allegations. 5. After completion of the trial, learned trial court, vide the impugned judgment, convicted the revision petitioner to undergo simple imprisonment for 1 month and pay a fine of Rs. 2,000/- with a default stipulation. 6. This judgment of the learned trial court was appealed against before the learned Additional Sessions Judge, Nagaon. The learned Additional Sessions Judge, aforesaid, on hearing respective learned counsel for both sides, affirmed the judgment of the learned trial court upholding the order of conviction as well as the sentence. 7. Challenging the legality, propriety and correctness of the order of conviction and sentence by both the courts below, this revision petition has been filed. 8. I have heard learned counsel for both the parties, as indicated above, and perused the evidence on record. 9. It has been submitted, during the course of hearing, by the learned counsel for the revision petitioner that the rice did not belong to the revision petitioner and rather it belonged to his wife who had produced invoice and bills to that effect. Learned counsel for the revision petitioner has also raised question that there is cut marks in the seizure list raising doubt about its genuineness. 10. The evidence of PW11 reveals that he was performing duty of transhipment point at Shed No. 2 and Shed No. 3. He was allotted with 3 BG wagon for transhipment of the content of the 3 BG wagon to 5 MG wagon and he found all the BG wagon with intact seals and content and rather he found 32 excess bags. He was allotted with 3 BG wagon for transhipment of the content of the 3 BG wagon to 5 MG wagon and he found all the BG wagon with intact seals and content and rather he found 32 excess bags. Taking recourse of this evidence, learned counsel for the revision petitioner has submitted that had there been any rice stolen there would not have been 32 bags more than the number of bags ought to have been there. However, the evidence of PW9 makes it clearly appear that there is shortage of 842 kgs of rice which he found while unloading 20 MG wagon. Apart from this contradiction of the evidence of PW11 & 9 the evidence of other witnesses appears to be consistent on the factum of recovery of the allegedly stolen rice from the possession of the revision petitioner and from his official quarter. In the seizure list also, the petitioner had put his signature, meaning thereby, that he has admitted its content also. Both the learned courts below arrived at concurrent findings of fact in respect of recovery of the rice from the possession of the revision petitioner as well as the fact that the said rice were stolen from the railway wagons. 11. That being so, in the considered view of this court, this court cannot re-open the question of facts involved in this case as both the learned courts below, as indicated above, arrived at concurrent findings. There is no such law point raised necessitating interference by this court. However, considering the fact of the case in its entirety and also taking into consideration the amount of rice stolen, this court is of the view that the punishment in the form of fine will meet the ends of justice and substantive punishment in the form of imprisonment does not appear to be necessary. 12. However, this court is not applying the provisions of Probation of Offenders Act to give benefit to the revision petitioner as the case is not considered to be of the nature requiring the revision petitioner to be granted the benefit under the said Act. 13. However, the fine imposed upon the revision petitioner of Rs. 2,000/- is enhanced to Rs. 4,000/- and in default of payment of fine, simple imprisonment for 1 month. 14. The revision petition stands disposed of accordingly. 15. 13. However, the fine imposed upon the revision petitioner of Rs. 2,000/- is enhanced to Rs. 4,000/- and in default of payment of fine, simple imprisonment for 1 month. 14. The revision petition stands disposed of accordingly. 15. The accused-revision is petitioner directed to surrender before the learned trial court within 1 (one) month from today to serve out the sentence. 16. Send back the LCR along with a copy of this judgment.