JUDGMENT : Through Video Conferencing Heard Mr. P.S. Dayal, learned counsel appearing on behalf of the petitioners. 2. Heard Mr. Abhay Kumar Tiwari, learned A.P.P. appearing on behalf of the opposite party - State of Jharkhand. 3. This revision application has been filed by the two petitioners against the judgement dated 06.03.2003 passed in Cr. Appeal No. 188 of 1996 by the court of learned 7th Additional Sessions Judge, Palamau whereby the judgement of conviction and order of sentence passed by the learned trial court has been affirmed. 4. The petitioners were convicted vide judgement of conviction and order of sentence dated 11.10.1996 passed in R.P. Case No. 23/1992, T.R. No. 99 of 1996 by the learned Railway Judicial Magistrate, Daltonganj to undergo Rigorous Imprisonment for two years for offence under Section 3 of Railway Properties (Unlawful Possession) Act, 1966 (hereinafter referred to as R.P.U.P. Act of 1966). Arguments on behalf of the petitioners 5. The learned counsel appearing on behalf of the petitioners, while assailing the impugned judgements, has submitted that the impugned judgements are perverse and are fit to be set-aside. He has submitted that neither the seized articles have been proved to be railway property nor the seizure itself has been proved. He has submitted that the seized articles were common articles which could be available in general market also and there was no mark of Railways on the seized articles. The learned counsel has also submitted that the two seizure witnesses have turned hostile and accordingly, the seizure itself has not been proved. 6. The learned counsel for the petitioners has further submitted that the conviction of the petitioners only on the basis of evidence of official witnesses is not sustainable in the eyes of law as the independent witnesses who were witness to the alleged seizure of articles, have not supported the prosecution case. 7. Without prejudice to the aforesaid submissions, the learned counsel has further submitted that as per the records of the present case, the present offence is the first offence of the petitioners and the petitioners have faced the criminal case right from the year 1992 and accordingly, about 30 years have elapsed from the date of the incident. 7. Without prejudice to the aforesaid submissions, the learned counsel has further submitted that as per the records of the present case, the present offence is the first offence of the petitioners and the petitioners have faced the criminal case right from the year 1992 and accordingly, about 30 years have elapsed from the date of the incident. He has submitted that the petitioners have been sentenced to undergo Rigorous Imprisonment for two years which is quite harsh and considering the elapse of time from the date of the incident, some sympathetic view may be taken. He has also submitted that the petitioner no. 1 has remained in custody during trial for about 7 days and petitioner nos. 1 and 2 have remained in custody during the pendency of present revision application for a period of about 22 days. Arguments on behalf of the opposite party 8. The learned counsel appearing on behalf of the State, on the other hand, has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below and there is no scope for re-appreciation of evidence by this Court in revisional jurisdiction and coming to a different finding. 9. The learned counsel for the State has further submitted that the official witnesses have fully supported the prosecution case and they have also identified the recovered materials. He further submits that the seizure witnesses though turned hostile, but they have not denied their signature on the seizure list. The learned counsel submits that considering the totality of the evidences on record, the impugned judgements are based on material on record and the impugned judgements are neither perverse nor suffer from any material irregularity or illegality. The learned counsel also submits that huge quantity of railway property was recovered and there is also confessional statement of the petitioner no. 1. He submits that in the aforesaid circumstances, no interference is called for in the conviction of the petitioners. 10. So far as the sentence is concerned, the learned counsel for the State has not disputed the fact that the incident is of the year 1992 and the present offence is the first offence of both the petitioners. However, he submits that it is for the court to take a call on the point of sentence. 10. So far as the sentence is concerned, the learned counsel for the State has not disputed the fact that the incident is of the year 1992 and the present offence is the first offence of both the petitioners. However, he submits that it is for the court to take a call on the point of sentence. He also submits that in case this Court is inclined to modify the sentence of the petitioners, some heavy fine amount may be imposed. Findings of this Court 11. After hearing the learned counsel for the parties, this Court finds that the prosecution case is based on the information received by inspector of Railway Protection Force, Garhwa Road that on 23.02.1992, some stolen articles of Railways were stored in a small godown situated in a village Dandila Khurd. Pursuant to such information, a raid was conducted with the help of some of the officers of Railway Protection Force in presence of some independent witnesses and when they reached the place of occurrence, two persons were found fleeing and one of them was caught hold on the spot and upon being asked, he disclosed his name as Rajgir Ram (the present petitioner no. 1) and the other petitioner managed to escape who was Bijay Sahu – the present petitioner no. 2. One jeep was also found where some articles were kept and on search, 7 nos. of CST 9 plates were recovered from the jeep bearing no. BRJ-7674 and 7 nos. of CST 9 plates, 20 nos. of CST 9 plates in damaged condition, 7 tonnes of broken pieces of CST 9 plates and 21 pieces of GI pipes were also recovered from the godown. Consequently, seizure list was prepared and copy of the same was handed over to the apprehended person i.e. petitioner no. 1 and after enquiry, the inspector submitted the prosecution report. 12. On the basis of the enquiry report, cognizance was taken for offence under Section 3 of RPUP Act, 1966 against the petitioners. The petitioners pleaded not guilty and claimed to be tried. The specific case of the petitioners was that they have been falsely implicated by the RPF officials. 13. On behalf of the prosecution, altogether eight witnesses were examined. Out of them, P.W. 2 is the inspector of RPF post Garhwa under whose leadership the raid was conducted. The petitioners pleaded not guilty and claimed to be tried. The specific case of the petitioners was that they have been falsely implicated by the RPF officials. 13. On behalf of the prosecution, altogether eight witnesses were examined. Out of them, P.W. 2 is the inspector of RPF post Garhwa under whose leadership the raid was conducted. He has fully supported the prosecution case and has clearly deposed that on 23.02.1992 he received a secret information that some stolen articles of railways are stored in a small godown in the aforesaid village and the same was going to be disposed off soon. Thereafter, he, with the help of other officials, rushed to the place. When he reached the place of occurrence, he saw that two persons were standing nearby a jeep which was standing in front of a small godown and both the persons started fleeing away, but one person was apprehended who disclosed his name as Rajgir Ram (petitioner no. 1). The apprehended person disclosed that the articles were kept in jeep and in godown and the jeep belongs to Bijay Sahu (petitioner no. 2) who managed to escape. Thereafter, the godown as well as the jeep was searched in presence of two independent witnesses and the aforesaid articles were recovered and seized and the seizure list was prepared in presence of independent witnesses. This witness has proved the seizure list, the forwarding report etc. and the confessional statement of the petitioner no.1-Rajgir Ram and they were marked as Exhibits-2, 3, 4 and 5 respectively. He has also clearly stated in his evidence that he had put a label over the seized articles and has claimed to identify the seized articles by seeing the label. He identified both the petitioners in the court. This witnesses was thoroughly cross-examined and he stated in his cross-examination that the petitioner no. 1 disclosed that the godown belongs to the petitioner no. 2. This witness has identified the seized articles as material exhibit – 1 and has also identified the signature of independent witnesses present on the label tag with the seized article. 14. P.W. 3 is a member of raiding party. He has also fully supported the prosecution case and the entire search and seizure has been made in his presence. 2. This witness has identified the seized articles as material exhibit – 1 and has also identified the signature of independent witnesses present on the label tag with the seized article. 14. P.W. 3 is a member of raiding party. He has also fully supported the prosecution case and the entire search and seizure has been made in his presence. This witness has also been fully cross-examined and has denied the suggestion of the defence that he was not a part of the raiding party. 15. P.W. 1 is the witness who has examined the seized articles and has submitted a report. The report has been marked as Exhibit-1. According to him, the entire materials belong to railway and he had put a label over it and he had put his signature over the label. He has stated that he checked the various seized articles and found that they are of use of Railways. 16. So far as P.Ws. 5 and 6 are concerned, they are the independent seizure witnesses who have been declared hostile though their signatures on the seizure list have been proved and exhibited. P.W. 8 is the person who had stated that he had rented his house to the petitioner no. 2 and when he came to know that he kept stolen properties in his house, he got him evicted from his house. 17. The learned trial court considered the evidences and also considered the plea of the defence that the prosecution has failed to prove that the articles were railway property and recorded its finding at para 12 as follows : “12. It was submitted on behalf of defence that prosecution has failed to prove that the articles which are said to be seized from the possession of accused persons, belong to Railway. From perusal of the seizure list which is Ext. 2 on the record, it is clear that 7 C.S.T. 9 plates were seized from the jeep of accused Vijai Sao and 7 C.S.T. 9 plates, 20 C.S.T. 9 plates in damaged condition, broken pieces of C.S.T. 9 plates weighing about 7 tonnes and 21 pieces of G.I. pipes were seized from the godown of accused Vijai Sao. P.W. 1 A. Das is an expert who has checked aforesaid entire seized articles and found them of Railway. He has submitted his expert report which is Ext. 1 on the record. P.W. 1 A. Das is an expert who has checked aforesaid entire seized articles and found them of Railway. He has submitted his expert report which is Ext. 1 on the record. He has stated that he put the label over the articles. He has further stated that he checked 7 C.S.T. 9 plates seized from the jeep. There is nothing in his cross-examination to cast shadow on his report. Further P.W. 7 N. K. Upadhya has also stated that he checked 21 pieces of G.I. Pipes ranging from 12’ to 16’ in length and he found that these pieces of pipes are of Railway. He has also submitted his expert report which is on the record. He is an expert and there is nothing in his cross-examination to discredit his testimony. Though he has stated in his cross-examination that there were no mark of Eastern Railway over pipes and such type of pipes are available in the market but his report shows that the pieces of pipes which were checked by him are of Railway. This witness has not even suggested by defence regarding his report. Under above mentioned circumstances it is clear that prosecution has been able to prove that the seized articles are of Railway. Further, the seizure list and the evidence of P.W. 1 and P.W. 7 go to show that the same articles which were seized from the possession of accused persons were examined by P.W. 1 and P.W. 7 and were found to be of Railway.” 18. The learned trial court also considered the argument that there was nothing to connect the petitioner no. 2 with the incident as the petitioner no. 2 was never apprehended on the spot, but the said plea was also rejected vide para 13 of the trial court judgement, which is quoted as under : “13. It was further submitted on behalf of defence that prosecution has failed to connect accused Vijai Sao in this case and under the circumstances of this case he is entitled to be acquitted. It was further submitted on behalf of defence that prosecution has failed to connect accused Vijai Sao in this case and under the circumstances of this case he is entitled to be acquitted. From perusal of the evidence present on the record, it is clear that accused Vijai Sao was not apprehended on the spot but P.W. 2 S.J. Ram and other members of raiding party who are P.W. 3 H.B. Pandey and P.W. 4 Sipahi Ram have stated in their evidence that they saw one person who managed to escape to see the raiding party. Ext. 5 the confessional statement of accused Rajgir Ram goes to show that the seized jeep no. BRJ 7674 and godown from where several Rly. articles were seized, belong to accused Vijai Sao. It is established law that R.P.F. officials are not police officers and confessional statement recorded by R.P.F. official is admissible in evidence. Further the evidence of P.W. 8 Ahmad Ansari goes to show that the godown which was searched in this case, was taken on rent by accused Vijai Sao from P.W. 8 Ahmad Ansari. Further from perusal of order dated 10.06.92, it is clear that the accused Vijai Sao has filed a petition on 12.3.92 for release of seized jeep no. BRJ 7674 in his favour claiming that it belongs him. The said seized jeep was ordered to be released in favour of accused Vijai Sao and he took it in his possession after filing the bond. From perusal of Ext. 5, the evidence of P.W. 8 Ahmad Ansari and order dated 10.6.92, it is clear that prosecution has been able to prove beyond all reasonable doubts that seized Rly. Articles were recovered from the conscious possession of accused Vijai Sao and Rajgir Ram.” 19. The learned trial court ultimately recorded its finding that the prosecution has been able to prove beyond all reasonable doubts that the seized articles were railway articles and were recovered from the conscious possession of the accused i.e. the present petitioners. The learned trial court also considered the fact that there was no explanation from the side of the petitioners regarding the possession of these articles which were railway properties and after considering the materials on record and the arguments of the parties, the learned trial court convicted the petitioners under Section 3 of the R.P.U.P. Act, 1966. The learned trial court also considered the fact that there was no explanation from the side of the petitioners regarding the possession of these articles which were railway properties and after considering the materials on record and the arguments of the parties, the learned trial court convicted the petitioners under Section 3 of the R.P.U.P. Act, 1966. The learned trial court considered the fact that the present offence was the first offence of the petitioners, but considering the quantum of recovery, the learned trial court convicted the petitioners for rigorous imprisonment of two years. 20. The learned appellate court also considered the arguments of the appellants including the point of seizure as well as identification of the seized articles and after considering the materials on record, gave concurrent finding and upheld the conviction as well as sentence of the petitioners for offence under Section 3 of the R.P.U.P. Act. 21. This Court finds that the learned courts below have closely scrutinized the materials on record and have come to concurrent findings. The fact remains that the petitioner no. 1 was apprehended on the spot and he was also handed over a copy of the seizure list. So far as the independent witnesses are concerned, though they have turned hostile, but they have admitted that they had put their signature on the seizure list. The official witnesses have fully supported the prosecution case and they have been thoroughly cross-examined. There is nothing on record to indicate any ill-will or enmity between the official witnesses and the petitioners. The petitioners have not led any defence evidence nor anything material could come at the time of cross-examination of the witnesses. So far as the identity of the articles is concerned, the recovered articles have been proved to be railway properties while scrutinizing the materials on record and their identification even in the court, as the seized articles were produced as material exhibits. The witness who had examined the articles has also supported the prosecution case and has clearly deposed that the recovered articles were railway properties. 22. This court is of the considered view that even when the seizure witnesses turned hostile, the evidence of the official witnesses, if otherwise credible, can be made the basis to believe the seizure. The witness who had examined the articles has also supported the prosecution case and has clearly deposed that the recovered articles were railway properties. 22. This court is of the considered view that even when the seizure witnesses turned hostile, the evidence of the official witnesses, if otherwise credible, can be made the basis to believe the seizure. In the present case, evidence of the other witnesses who have supported the case of the prosecution and given consistent evidence, have been relied upon by the learned courts below to convict the petitioners and considered the fact that the seizure witness did not support the case, but had admitted their signatures on the seizure list. This Court finds no illegality or perversity with the aforesaid approach of the learned courts below. 23. In State of Kerala v. M.M. Mathew, (1978) 4 SCC 65 , the Supreme Court held that prima-facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. This view was reiterated by the Supreme Court in State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 . 24. The Hon’ble Supreme Court in Rameshbhai Mohanbhai Koli and others Versus State of Gujarat reported in (2011) 11 SCC 111 , while dealing with the appreciation of evidence in connection with hostile witnesses has held that merely because a witness is hostile, the evidence of such witness cannot be said to be completely washed off. In para 16 to 17, it has been held as under:- “Hostile witness 16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka and Khujji v. State of M.P.) 17. (Vide Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka and Khujji v. State of M.P.) 17. In State of U.P. v. Ramesh Prasad Misra this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, Gagan Kanojia v. State of Punjab, Radha Mohan Singh v. State of U.P., Sarvesh Narain Shukla v. Daroga Singh and Subbu Singh v. State…………….” 25. The Hon’ble Apex Court has explained the power of revisional court in the case of “Jagannath Choudhary and others Vs. Ramayan Singh and Another” reported in (2002) 5 SCC 659 at para. 9 as under:- “9. Incidentally the object of the revisional jurisdiction as envisaged u/s 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. (See in this context the decision of this Court in Janata Dal Vs. H.S. Chowdhary). The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction.” 26. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction.” 26. The revisional power is further explained in the case of Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at para. 13 as follows : “It is well settled that revisional interference may be justified where: (i) the decision is grossly erroneous. (ii) there is no compliance with the provisions of law. (iii) the finding of fact affecting the decision is not based on evidence. (iv) material evidence of the parties is not considered and (v) judicial discretion is exercised arbitrarily or perversely.” 27. This Court is of the considered view that the materials on record were fully considered by the learned courts below while recording conviction of the petitioners under Section 3 of the R.P.U.P. Act. This Court does not find any illegality or perversity or material irregularity in the impugned judgements of conviction and accordingly, no interference is called for by this Court in revisional jurisdiction so far as conviction of the petitioners is concerned. 28. So far as the sentence of the petitioners is concerned, this Court finds that it is not in dispute that the present offence is the first offence of the petitioners and the case was instituted as back as in the year 1992 and about 30 years have elapsed from the date of incident. The fact remains that the learned courts below, while imposing the sentence of two years Rigorous Imprisonment, have considered the quantum of recovery. This Court finds that under Section 3 of the R.P.U.P. Act, for the first offence, there is a provision for imprisonment which may extend to 5 years or with fine or with both and in the absence of any special and adequate reasons to be mentioned in the judgement, such imprisonment shall not be less than one year and such fine shall not be less than Rs.1,000/-. 29. Considering the fact that the petitioners have faced the rigorous of the criminal case for a long period and the present offence is the first offence of the petitioners, this Court finds it proper to modify the sentence of the petitioners to some extent to meet the ends of justice. 29. Considering the fact that the petitioners have faced the rigorous of the criminal case for a long period and the present offence is the first offence of the petitioners, this Court finds it proper to modify the sentence of the petitioners to some extent to meet the ends of justice. Accordingly, the sentence of the petitioners is hereby reduced to a period of one-year Rigorous Imprisonment and fine of Rs.25,000/- each to be deposited within a period of six months from the date of communication of this order to the learned court below. In case the petitioners do not deposit the fine amount, they would serve the sentence imposed by the learned court below. 30. The bail bonds furnished by the petitioners are cancelled. 31. This petition is disposed of with aforesaid modification of sentence. 32. Interim order, if any, stands vacated. 33. Pending interlocutory applications, if any, are closed. 34. Let the Lower Court Records be sent back to the court concerned. 35. Before parting with this judgement, it appears that there is some mismatch regarding name/spelling of the petitioners when compared to their name/spelling in the impugned judgements. As per the trial court judgement, the description is as follows : “1. Rajgir Ram, S/o Late Mahagoo Ram 2. Vijay Sao, S/o Naurangi Sao” As per the appellate court’s judgement, the description is as follows : “Rajgir Ram Bijay Sao” The learned court below is directed to proceed against the petitioners as per their identity disclosed in the trial court records. 36. Let a copy of this order be communicated to the learned court below through ‘FAX/Email’.