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2021 DIGILAW 982 (KAR)

S. Suresh v. Union Of India

2021-12-02

V.SRISHANANDA

body2021
JUDGMENT : 1. Heard Sri.Desu Reddy, learned counsel for the revision petitioner and Sri.V.S.Vinayaka, learned HCGP for the State-respondent and perused the records. 2. This revision petition is filed by the accused who suffered an order of conviction under the provisions of 3A of the Railway Property (Unlawful Possession) Act, 1966 (in short "RP (UP) Act") and ordered to undergo simple imprisonment for a period of 6 months and to pay a fine of Rs.1,000.00 with a default sentence of one year, which was confirmed in Crl.A. No.189/2012. 3. Brief facts of the case are as under:- ASI of Railway Protection Force, Mysore on 5/7/2008 at about 4.10 p.m., spotted one Nagaraju with unlawful possession of railway properties. He was intercepted and enquired. He revealed that on earlier occasion also, he has stolen the railway properties and sold the same. Thereafter, the head of the raid party seized the railway properties, which were in the possession of the revision petitioner, drafted a mahazar and filed a report. Based on the same, a case came to be registered against the revision petitioner and investigated in detail culminating him by filing a charge sheet before the jurisdictional Magistrate. Plea was recorded. Accused pleaded not guilty. Hence, trial was held. In order to prove the case of the prosecution, in all, six witnesses were examined comprising of head of the raid party and other two police personnel, mahazar witnesses and investigation officer as PWs.1 to 6. Prosecution also relied on 31 documents, which were exhibited and marked as Exs.P1 to P31 comprising of complaint, mahazar, report and statement of the charge sheet witnesses. Material objects viz., aluminum wall protector, screwdriver, aluminum beading and seven fish cocks and cash of Rs.5,410.00 were marked by the prosecution as MOs.1 to 6. Thereafter, statement of the accused as contemplated under Sec. 313 Cr.P.C. was recorded by the jurisdictional Magistrate. Accused having understood the incriminatory materials found in the prosecution case, denied the same. However, the accused did not offer any explanation or say his version with respect to the incident either at the time of recording the accused statement or by examining himself. Accused having understood the incriminatory materials found in the prosecution case, denied the same. However, the accused did not offer any explanation or say his version with respect to the incident either at the time of recording the accused statement or by examining himself. He also failed to place on record any written statement as is contemplated under Sec. 313 (5) of Cr.P.C. Taking note of the oral and documentary evidence on record and after duly appreciating the same and in the absence of any explanation offered by the accused, the learned jurisdictional Magistrate convicted the accused for the aforesaid offence and passed an order of sentence as referred to supra. Being aggrieved by the same, the accused preferred an appeal before the District Court, Mysore in Crl.A.No.189/2012. The learned Judge in the first Appellate Court after securing the trial Court records and re-appreciating the entire materials on record dismissed the appeal of the accused and confirmed the order of conviction and sentence passed by the trial Magistrate. Being aggrieved by the same, the accused is in revision. 4. In this revision petition, the grounds raised by the revision petitioner have been called out hereunder: 9. The Lower Courts have committed grave error in law in taking the cognizance of the offence and as such the conviction is bad in law. 10. The Lower Courts has erred in law in accepting and acting upon the Evidence of prosecution witnesses which is being inadmissible. 11. The evidence taken by the Lower courts is manifestly erroneous and argument employed by the Lower Courts for convicting the Petitioner utterly unsustainable in law. 12. The learned Magistrate failed to observe the fact that, there is lot of omissions and contradictions and improvements with respect to the evidence adduce by prosecution witnesses and the same have been overlooked by the Lower Courts. 13. The Lower Courts failed to observe the fact that, the C.W.1 who examined as P.W.1 deposed with regard go the incident, drawing panchanama, recording the statement of witnesses. During the course of Cross Examination it is admitted that the Trains which is stopped at about 10.00 p.m. by closing the door on the day and the door shall be opened on the next day at about 10.00 a.m. that too when the train comes to the track about one hour for departure. During the course of Cross Examination it is admitted that the Trains which is stopped at about 10.00 p.m. by closing the door on the day and the door shall be opened on the next day at about 10.00 a.m. that too when the train comes to the track about one hour for departure. It is also admitted that the Door of the Train was opened at about 5.30 a.m. and the Accused No.1 was arrived at 4.10 a.m. Hence, this fact clearly leads to contradictory and the Lower Court has overlooked the said fact. 14. The Lower Court failed to observe the fact that, the P.W.1 deposed that, the panchanama was drawn between 4.10 hours to 5.10 Hours. At the said time the panchas are not available. Hence, the alleged panchanama absolutely leads to suspicion. It is admitted that, the Appellant is doing the sales of Aluminium Vessels. If the Appellant is doing the sales of Aluminium Vessels then the question of possession of the Railway Property absolutely leads to suspicion. 15. The lower Court failed to observe the fact that, the P.W.1 admitted that, no where the statement with regard to selling the said Aluminium Beading and other properties to this Petitioner is stated by the witnesses. And also not made separate list with regard to whom the Railway Property and also not stated the specific amount to whom the Railway Property is sold and for what amount is sold and to whom is sold. 16. The Lower Court failed to observe the fact that, the P.W.1 admitted that, the Old Railway Property which is not in used shall be auctioned and the IRS mark is not striked out. Hence this fact clearly goes to show that, the PW.1 has not been supported to the prosecution case. 17. The C.W. 2 examined as P.W.2 deposed with regard to the incident. He deposed that, the Accused No.1 was found in possession of Railway Property along with cutting player and spanner. It is pertinent to note that, the said Cutting Player and Spanner: has not been seized by them and no material object has been marked. Further deposed that, they have seized the cash of Rs.4,610.00. During the course of the Cross Examination the P.W.2 failed to state the boundaries wherein the seizure Mahazar was taken place and admitted that the Appellant sell the Aluminium, Brass and Iron Items. Further deposed that, they have seized the cash of Rs.4,610.00. During the course of the Cross Examination the P.W.2 failed to state the boundaries wherein the seizure Mahazar was taken place and admitted that the Appellant sell the Aluminium, Brass and Iron Items. It is also admitted that, separate list has not been prepared and also admitted that, at the time of the Mahazar the Assistant of Petitioner was been present and the said person has not been cited as witness and also not taken signature of the said person. 18. The Lower Court failed to observe the fact that with regard to recovery of amount different version has been stated by the P.W.1 and P.W.2 which have been overlooked by the Lower Court. 19. The C.W.3 examined as P.W.3 in the above case who deposed with regard to the incident and also deposed that the Accused No.1 was in possession of Wall Protector and Screw Driver. It is deposed that, after apprehending the Accused No.1 brought him to the Police Station and by summoned the Witness. During the Cross Examination it is admitted that separate list for selling the properties has not been made. It is also admitted that, with regard to seizure of the properties in Bogie and slips pasted on the said seizure of the Properties there is no endorsement and date is found and in M.O. 1 the time is not mentioned and there is no sign of Railway Property is found on the said seizure of the Material Objects. 20. The C.W. 5 examined as P.W. 4 is treated as hostile and not supported to the prosecution case. 21. The C.W.s examined as P.W.5 deposed with regarding to certifying the properties furnished by the P.W.1 as Railway Property. However, it is pertinent to note that, the P.W. 5 stated that, he has given the Certificate on 25/7/2008 i.e., after the lapse of nearly 20 days of the incident. It is clearly admitted that, there are no Railway Property marks on the Material Object No.1, 4 and 22. The C.W. 4 examined as P.W. 6, who treated as hostile and not supported to the prosecution witness. 23. The Lower Court failed to observe the fact that, by going through the Evidence deposed by the P.W.1 to 6. It is clearly admitted that, there are no Railway Property marks on the Material Object No.1, 4 and 22. The C.W. 4 examined as P.W. 6, who treated as hostile and not supported to the prosecution witness. 23. The Lower Court failed to observe the fact that, by going through the Evidence deposed by the P.W.1 to 6. It is clearly admitted that there is no marks that, the said Material objects seized by the P.W.1 belongs to Railway Property. Even the P.W.5 clearly admitted that, the said Properties does not contain Railway marks. 24. The Lower Court failed to observe the fact that, except the Mahazar witnesses who have not supported the prosecution case, all other witnesses are Departmental witness. 25. That there are several weaknesses in the evidence of Prosecution witnesses which have been overlooked by the Lower Court. 26. The Evidence was sufficient to create suspicion and the appraisal of Evidence on record by the Lower Courts thus suffers from illegality manifest error. 5. Reiterating the above grounds, the learned counsel for the revision petitioner Sri.Desu Reddy contended that both the Courts have not properly appreciated the material evidence on record and recorded an order of conviction and passed an order of sentence against the accused resulting in miscarriage of justice and sought for allowing the revision petition. 6. Alternatively, Sri.Desu Reddy contended that in the event of this Court coming to the conclusion that both the Courts have rightly convicted the accused, the accused being the first time offender, he may be granted probation by following the dictum of the Hon'ble Apex Court in the case of Nirmal Lal Gupta vs. State of Orissa reported in 1995 SCC 10 (Crl) 782 and the judgments of this Court in the case of N.Chinnathambi vs. Union of India in Crl.RP No.565/2005 decided on 26/6/2008 and in the case of Union of India vs. E.Thammegowda in Crl.A No.2045/2005 decided on 20/9/2011. 7. Per contra, Sri.V.S.Vinayaka, learned HCGP while supporting the impugned judgment contended that on the day of raid, admittedly, the accused was in possession of MOs.1 to 6 and no proper explanation was offered. 7. Per contra, Sri.V.S.Vinayaka, learned HCGP while supporting the impugned judgment contended that on the day of raid, admittedly, the accused was in possession of MOs.1 to 6 and no proper explanation was offered. The materials on record especially the oral and documentary evidence in the form of oral testimony of the head of the raid party and supporting staff coupled with the report given by the officials clearly establish that the property belongs to the railway and it is not freely available commodity in the open market and taking note of the same, properly appreciating the material on record, rightly convicted the accused, which is properly re-appreciated by the learned Judge in the first Appellate Court and sought for dismissal of the revision petition. 8. Insofar as an alternative submission, the learned HCGP contended that having regard to the language employed in Ss. 3 and 4 of the Probation of Offenders Act, 1958, if the Court wants to award a lesser punishment than minimum of one year, adequate and special reasons are to be assigned by the Court while granting such a relief to the accused and no such case is made out by the accused in the present case and sought for dismissal of the revision petition in toto. 9. In view of rival contention and having regard to the scope of the revision petition, the following points would arise for consideration: 1. Whether the finding recorded by the trial Magistrate that the accused is guilty of the offence punishable under Sec. 138 of N.I.Act confirmed by the first Appellate court is suffering from legal infirmity, patent factual defects, error of jurisdiction or perverse and thus, calls for interference? 2. Whether the sentence is excessive? 10. In the case on hand, there is no dispute that the accused was apprehended by the head of the raid party on 5/7/2008 at 4.10 p.m. ASI who apprehended the accused, seized MOs.1 to 6 on the spot, drew the mahazar and his sub-staff did not nurture any previous enmity or animosity against the accused so as to falsely implicate the accused in the case. More over, the material objects seized by the ASI are not freely available commodity except the cash and screwdriver. The materials on record clearly indicate that the material seized by ASI is railway property. More over, the material objects seized by the ASI are not freely available commodity except the cash and screwdriver. The materials on record clearly indicate that the material seized by ASI is railway property. There is no contra evidence placed by the accused nor any possible explanation offered at the time of recording the statement of the accused or atleast placing the written submission on record as is contemplated under Sec. 313 (5) Cr.P.C. about the version of the accused and the incident on record. In the absence of any such version or plea placed by the accused on record, the consequences on law has been followed and the trial Magistrate was justified in convicting the accused for the aforesaid offence. On appeal by the accused, the learned Judge in the first Appellate Court re-appreciated the entire materials on record in the light of the grounds urged by the accused and rightly dismissed the appeal by not only upholding the finding recorded by the trial Magistrate but also supplemented the additional reasons for supporting the view taken by the learned trial Magistrate. This Court having regard to the scope of the revisional jurisdiction and re-appreciation of the entire materials on record and in the light of the grounds urged in the revision petition and arguments advanced by Sri.Desu Reddy, learned counsel for the revision petitioner is of the considered opinion that no case is made out by the revision petitioner so as to hold that the finding recorded by the trial Magistrate confirmed by the first Appellate Court that the accused was in unlawful possession of the railway property at the time of raid and thereby committed an offence punishable under Sec. 3A of the said Act is not suffering from any legal infirmity, patent factual defects or error of jurisdiction or perversity. Accordingly, Point No.1 is answered in negative. 11. Regarding Point No.2: In order to appreciate the contentions urged on behalf of the revision petitioner and in the light of the legal principles enunciated in the decisions cited supra by the learned counsel for the revision petitioner, it is just and necessary for this Court to refer Ss. 3 and 4 of the Probation of Offenders Act, 1958, which reads as under:- 3. Power of court to release certain offenders after admonition." "When any person is found guilty of having committed an offence punishable under sec. 3 and 4 of the Probation of Offenders Act, 1958, which reads as under:- 3. Power of court to release certain offenders after admonition." "When any person is found guilty of having committed an offence punishable under sec. 379 or sec. 380 or sec. 381 or sec. 404 or sec. 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under sec. 4 release him after due admonition. 4. Power of court to release certain offenders on probation of good conduct." " (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-sec. (2) Before making any order under sub-sec. (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-sec. (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-sec. (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-sec. (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. 12. On careful perusal of the said provisions, it is clear that the Court is not powerless in granting probation in a given case. However, the Courts are required to be very slow while dealing with such people especially when the accused is a first time offender. On record, there is no material to show that the accused has criminal antecedents. Under such circumstances, the minimum sentence of one year can be reduced into fine by supplying the reason. 13. In the case on hand, even though ASI has stated that the accused has committed theft of the railway property on earlier occasion also but there is no effort made by the prosecution to place any such records to substantiate that the accused has been prosecuted earlier. Under such circumstances, the contention urged on behalf of the prosecution cannot be countenanced to hold that the accused - revision petitioner is a habitual offender. Under such circumstances, the contention urged on behalf of the prosecution cannot be countenanced to hold that the accused - revision petitioner is a habitual offender. When he is a first time offender, especially having regard to the seizure of the material being of small quantity, this Court is of the considered opinion that the accused can be granted probation and ordered to pay additional fine in a sum of Rs.15,000.00, it would meet the ends of justice. Accordingly, Point No.2 is answered and following order is passed. ORDER 1. The Revision Petition is allowed in part. 2. While maintaining the conviction of the accused - revision petitioner for the offence punishable under Sec. 3 of RP (UP) Act, 1966, accused is directed to execute a bond in a sum of Rs.25,000.00 with one surety for the likesum to the satisfaction of the trial Magistrate for his good behaviour which shall be in force for a period of two years from the date of execution and ordered to pay additional fine of Rs.15,000.00 excluding the fine of Rs.1,000.00 imposed by the trial Magistrate on or before 31/1/2022. 3. It is made clear that default in paying the fine amount or violation of the bond conditions, order passed by the trial Magistrate stands automatically restored. Ordered accordingly. Office is directed to return the trial Court records with a copy of this order forthwith.