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2020 DIGILAW 407 (JHR)

Bajrangi Prasad Kasera v. State Of Jharkhand

2020-02-28

SHREE CHANDRASHEKHAR

body2020
JUDGMENT 1. The petitioners were convicted by the judgment dated 14.10.2009 under section 3(a) of the Railways Property (Unlawful Possession) Act, 1966 and sentenced to R.I for two years for the said offence in R.P. Case No.77 of 2004/ T.R No.684 of 2009. 2. Against the aforesaid judgment in R.P. Case No.77 of 2004, they have preferred Criminal Appeal No.327 of 2009/328 of 2009 and Criminal Appeal No.328 of 2009 which have been dismissed by the judgments dated 03.12.2014 and 05.01.2015 but with modification in the order of sentence; the sentence to R.I for two years has been reduced to R.I for one year. 3. During the trial in R.P. Case No.77 of 2004, 4 witnesses were examined on behalf of the Railways to prove the charge under section 3(a) of the Railways Property (Unlawful Possession) Act, 1966 against the accused persons. The allegation against the accused persons is that they have committed theft of 40 meters of O.H.E. wire and they were apprehended by a raiding team consisting of 20 persons. An expert who was examined as P.W 1 has stated that the recovered property which was Exhibit-1 and seizure of which was marked as Exhibit-2 disclose that the recovered wires were used by the Railways. 4. Mr. Zaid Ahmed, the learned counsel for the petitioners submits that the court below have not considered mitigating circumstances which are leaning towards the petitioners while inflicting imprisonment of R.I for two years. 5. Under section 3(a) of the Railways Property (Unlawful Possession) Act, 1966 the maximum imprisonment is five years. The punishment provided under 3(a) of the Railways Property (Unlawful Possession) Act, 1966 provides that it can be an order of imprisonment term of which may extend to five years, or with fine, or with both but the term of imprisonment shall not be less than one year. It further provides that for adequate reasons the punishment for the first offence may be less than one year. 6. It is fundamental in every criminal trial that charge against an accused should be proved beyond all reasonable doubt. The charge of theft of the properties belonging to Railways can be proved by leading evidence which would conclusively prove that the stolen property belonged to the Railways. 6. It is fundamental in every criminal trial that charge against an accused should be proved beyond all reasonable doubt. The charge of theft of the properties belonging to Railways can be proved by leading evidence which would conclusively prove that the stolen property belonged to the Railways. Both the courts below have held that the petitioners have committed the offence under section 3(a) of the Railways Property (Unlawful Possession) Act, 1966, and in view of the evidence against the appellants I am not inclined to interfere with this finding of facts, but then, testimony of P.W 1 and other witnesses should have been kept in mind while deciding quantum of sentence. P.W 1 has stated that the seized properties were not auctionable. P.W 2 has failed to give length of the seized wires and P.W 3 and P.W 4 who were part of the raiding team are completely silent on this aspect. The learned appellate court has noticed that the total value of the seized articles was Rs.4,500/- and the accused persons have suffered 10 years in the interregnum. Today it is more than 15 years when a complaint was lodged by the Railways. A glance at the punishment provided under section 3(a) of the Railways Property (Unlawful Possession) Act, 1966 would indicate that punishment of imprisonment and, in alternative, punishment of fine also can be imposed upon a convict. It is thus apparent that if such wide powers have been conferred upon the court, before punishment is inflicted upon an accused the mitigating viz-a-viz aggravating circumstances must be weighed by the court. The learned counsel for the petitioners has referred to the judgment in '' Purna Chandra Sen Gupta Vs. Supdt. & Remembrancer of Legal Affairs'' reported in (1994) 1 SCC 429 to submits that the sentence awarded to the petitioners may be reduced. 7. Having examined records of the case and keeping in mind the aforesaid mitigating circumstances which are leaning towards the petitioners, while upholding their conviction under section 3(a) of the Railways Property (Unlawful Possession) Act, 1966 the petitioners are sentenced to period already undergone with fine of Rs.10,000/- each. 8. With the aforesaid modification in the judgment dated 3.12.2014 passed in Criminal Appeal No.327 of 2009/328 of 2009 and the judgment dated 05.01.2015 passed in Criminal Appeal No.328 of 2009, Criminal Revision No.202 of 2015 stands disposed of. 9. 8. With the aforesaid modification in the judgment dated 3.12.2014 passed in Criminal Appeal No.327 of 2009/328 of 2009 and the judgment dated 05.01.2015 passed in Criminal Appeal No.328 of 2009, Criminal Revision No.202 of 2015 stands disposed of. 9. Let lower-court records be sent to the court concerned forthwith.