JUDGMENT : Anubha Rawat Choudhary, J. 1. Heard learned counsel for the parties. 2. This criminal revision has been filed against the Judgment dated 17.09.2016 passed by the learned 2nd Additional Sessions Judge, Latehar in Criminal Appeal No.30/2012 whereby and whereunder the criminal appeal has been dismissed. The Judgment of conviction and the order of sentence dated 06.09.2012 passed by the learned Railway Judicial Magistrate, Daltonganj in R.P. Case No.19/2003 / Tr. No.19/2012 has been affirmed. 3. The learned Trial Court has convicted the petitioner under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 [HEREINAFTER REFERRED TO AS R.P.(U.P.) ACT] and has sentenced him to undergo Rigorous Imprisonment for two years with fine of Rs.2,000/-and in default of payment of fine, to undergo R.I. for one year under Section 3(b) of R.P.(U.P.) Act and the period already undergone in jail custody was directed to be set off. Submissions on behalf of the petitioner 4. The learned counsel for the petitioner submitted that the basic ingredients for the offence under Section 3 of the R.P. (U.P.) Act has not been satisfied against the petitioner. Neither the allegation of theft has been proved, nor possession has been proved. 5. He also submitted that the coal was found scattered near the railway line at open place and therefore, the property cannot be said to be Railway property. 6. The learned counsel submitted that though the charge was framed under Section 3 of R.P. (U.P.) Act, but no specific charge was framed under Section 3(b) of R.P (U.P.) Act. In absence of specific charge having been framed under Section 3(b) of R.P. (U.P.) Act, the petitioner could not have been convicted under Section 3(b) of R.P. (U.P.) Act. He placed Section 3(a) and 3(b) of the R.P. (U.P.) Act and submitted that the basic ingredients for the offence under both the sub-sections are same and the only difference is that in case of previous conviction, the offence is punishable under Section 3(b) of R.P. (U.P.) Act. Two previous convictions have been mentioned in the judgment passed by the learned Trial Court in connection with R.P. Case No. 9 of 2000 and R.P. Case No. 77 of 1994. Two previous convictions have been mentioned in the judgment passed by the learned Trial Court in connection with R.P. Case No. 9 of 2000 and R.P. Case No. 77 of 1994. He submitted that no specific charge having been framed under section 3(b) of R.P. (U.P.) Act, the conviction of the petitioner under Section 3(b) of R.P. (U.P.) Act cannot be sustained in the eyes of law. 7. The learned counsel further submitted that the petitioner has been convicted only the basis of confessional statement and nothing more. 8. He submitted that the persons whose confessional statements were recorded namely, Majid @ Babloo, Md. Hasib Miya and Md. Sanaullah, their cases were split up vide order dated 05.07.2008 due to their prolonged non-appearance. 9. The trial court’s judgment also records that the petitioner was arrested on 29.02.2003 from his house and he had confessed his guilt and his confessional statement was recorded. Findings of this Court 10. The prosecution case is based on the F.I. Sheet and Complaint submitted by Inspector-in-charge, RPF Post Patratu (PW-2) alleging that on 08.05.2003 at about 07:00 A.M., the Complainant received information from the on-duty Station Master that UP Goods Train Nos. 7443 and 7096 loaded with coal were forcibly stopped by miscreants at K.M. No. 183/27 and a large quantity of coal was unloaded from the wagon. When the Informant alongwith other police personnel rushed to the place of occurrence, they saw 13 to 14 persons engaged in carrying stolen coal in cane baskets and stacking the same at a distance of 20 yards south from UP Railway track and two persons were supervising the stacking of the coal who were identified as Mofil Khan and Md. Hasib Mian. After chase, Md. Sanaullah @ Kalal and Md. Mazid @ Bablu were arrested and 30 Kg. raw coal from each were recovered. On search of the vicinity, three tons of raw coal in scattered condition, 3 cane baskets each containing 30 Kg. raw coal, 5 empty cane baskets and 2 tons of raw coal were recovered. On demand, the arrested persons failed to produce any legal authority or satisfactory account for possession of the recovered coal, rather they confessed that they had unloaded the raw coal from the coal loaded goods train. The recovered coal was seized and accordingly, two different seizure lists were prepared. On demand, the arrested persons failed to produce any legal authority or satisfactory account for possession of the recovered coal, rather they confessed that they had unloaded the raw coal from the coal loaded goods train. The recovered coal was seized and accordingly, two different seizure lists were prepared. The recovered property brought to RPF Post Tori and the confessional statement of accused Md. Majid and Md. Sanaulla were recorded on 08.05.03. Both confessed that under the leadership and supervision of accused Mofil Khan, they were collecting the recovered coal. During the course of enquiry, Md. Hasib @ Habib Ansari was arrested on 09.05.03 while he was getting the coal loaded on his truck bearing no. UMH 9495, near Bhandarpatta railway line. Confessional statement dated 09.5.03 was also recorded wherein he confessed his guilt in connection with this case and also stated that other accused persons of this case were also involved in the alleged crime. Furthermore, during the course of investigation on 29.02.03 accused Mofil Khan was arrested from his house and confessed his guilt accordingly his confessional statement was recorded in connection with this case. 11. On the basis of the aforesaid Complaint, the case was registered as R.P. Case No.09/2003 dated 08.05.2003 (R.P. Case No.19/2003) under Section 3 of R.P. (U.P.) Act, 1966. After completion of enquiry, the Enquiry Officer (PW-5) submitted prosecution report dated 18.09.2003 against Sanaullah @ Kalal, Md. Mazid @ Bablu, Md. Mofil Khan and Md. Hasib Mian and thereafter, vide order dated 28.11.2003, cognizance of the offence under Section 3 of R.P. (U.P.) Act, 1966 was taken against all the four accused persons. Vide order dated 05.07.2008, the case of Sanaullah @ Kalal, Md. Mazid @ Bablu and Md. Hasib Mian was split up due to their prolonged non-appearance from the case record of the petitioner. Thereafter, on 02.01.2009, charge under Section 3 of RP(UP) Act was framed against the petitioner which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 12. In course of trial, the prosecution examined altogether six witnesses to substantiate the case against the petitioner. PW-1 is the ASI at RPF post Patratu ;PW-2 is Inspector-in-charge, the Complainant of the case; PW-3 , the guard of train no. 7443 UP BTPP loaded with coal ; PW-4 is guard of train no. 12. In course of trial, the prosecution examined altogether six witnesses to substantiate the case against the petitioner. PW-1 is the ASI at RPF post Patratu ;PW-2 is Inspector-in-charge, the Complainant of the case; PW-3 , the guard of train no. 7443 UP BTPP loaded with coal ; PW-4 is guard of train no. 7096 RPPER , PW-5 is A.S.I. , the Enquiry Officer of the case and PW-6 is ASI CIB , Dhanbad . Apart from the oral evidences, the prosecution exhibited the seizure list no.1 as Exhibit-1, seizure list no.2 as Exhibit-1/1, signature of PW-6 on seizure list no.1 as Exhibit-1/2, signature of PW-6 on seizure list no.2 as Exhibit-1/3, Complaint Petition as Exhibit-2, signature of Complainant on F.I. Sheet as Exhibit-3, Train Detention Chart/ Guard Memo as Exhibit-4, confessional statement of co-accused Sanaullah @ Kalal as Exhibit-5, confessional statement of co-accused Md. Mazid @ Bablu as Exhibit-5/1, confessional statement of Md. Hasib Mian as Exhibit-5/2, confessional statement of the petitioner as Exhibit-5/3, Map of place of occurrence as Exhibit-6, prosecution report as Exhibit-7 and specimen of coal pasted with label as Material Exhibit-I. 13. After closure of prosecution evidence, the statements of the petitioner were recorded under Section 313 of Cr.P.C. on 18.05.2012 wherein he denied that on 08.05.2003 at about 07:00 A.M. at Railway K.M. 183/19-21, when 13 - 14 persons were collecting coal after carrying under the supervision of the petitioner and his associate and on seeing the R.P.F., they succeeded to flee away. He admitted his signature on his confessional statement recorded by the Enquiry Officer, A.S.I. Purushotam Tiwary, R.P.F. on 29.08.2003, but he stated that his signature was taken forcibly in a blank paper. He denied that co-accused persons had made their signatures on two seizure lists at the place of occurrence. He further denied that 5 tons of stolen coal of Railways were seized at the place of occurrence. He claimed to be innocent and stated that he would produce witness. 14. Thereafter, the petitioner examined one witness as DW-1 in his defence. 15. The learned trial court considered the evidences and materials on record and recorded its findings at Para-18 to 24 which are as under: “18. Heard both sides and perused the record. P.W.-1, P.W.-2-cum-Complainant of this case, P.W.-3 and P.W.-6 are the raiding team members. 14. Thereafter, the petitioner examined one witness as DW-1 in his defence. 15. The learned trial court considered the evidences and materials on record and recorded its findings at Para-18 to 24 which are as under: “18. Heard both sides and perused the record. P.W.-1, P.W.-2-cum-Complainant of this case, P.W.-3 and P.W.-6 are the raiding team members. They have categorically stated before the court that on the date and time of occurrence when they approached the P.O then they saw that some people were collecting coal near the Railway line and on the being chased two of them were arrested but others were able to flee away. Out of them, two absconded persons were identified as accused Mofil Khan facing trial in this case and one other. Both the arrested persons have confessed their guilt before them as well as they disclosed the identity of the accused Mofil Khan and also stated that under the supervision of Mofil Khan they were collecting the coal. The confessional statement of the accused persons have been marked as Exhibits in this case from Exhibit 5 to 5/3. Exhibit 5/3 is the confessional statement of accused Mofil Khan facing trial in this case. Two seizure lists were prepared in this case have been proved by the prosecution as Ext. 1 & Ext. 1/1 respectively. It has come in the evidence that the copy of the seizure lists were served upon the arrested accused persons and they had put their signatures on the original seizure list. P.W.5 is the enquiry office of this case who has recorded statement of the apprehended accused persons at the spot and he has also recorded the confessional statement of accused Mofil Khan who was arrested during the joint raid with the police. He has also proved the map of the P.O.. P.W.-3 & 4 are the Goods Guard of the relevant goods train. Both have categorically stated before the court that on the date of occurrence, the miscreants had committed ACO of their train and detained the train loaded with coal near the P.O.. P.W.-3 has also stated that about 10-15 miscreants unloaded the coal from his train. P.W.-4 has proved the train detention chart/Guard Memo book and the same has been marked as Ext.-4 in this case. 19. I would like to discuss the evidence on the point of identification of the accused. P.W.-3 has also stated that about 10-15 miscreants unloaded the coal from his train. P.W.-4 has proved the train detention chart/Guard Memo book and the same has been marked as Ext.-4 in this case. 19. I would like to discuss the evidence on the point of identification of the accused. All of the raiding team witnesses of this case had claimed to identify the accused Mofil Khan before the court. It has also consistently come in their evidence that accused Mofil Khan was seen and identified at the P.O.. Furthermore, it has also come in the evidence as well as in the confessional statement of other co-accused persons (Ext.-5, 5/1 & 5/2) that under the guidance/supervision of accused Mofil Khan, the said goods trains were detained and the coal was being collected by the other accused persons in this case. Furthermore, it has also come in the evidence that accused Mofil Khan is the known criminal of Rail relating to coal theft. The cumulative reading of the aforesaid circumstances appearing in evidence against the accused Mofil Khan would clearly suggest that accused Mofil Khan was seen at the P.O. by the raiding team while guiding/supervising the collection of coal near the P.O. by the other accused persons. Since it is the case of the prosecution that accused Mofil Khan was able to flee away from the spot, but later on apprehended by the RPF with the help of police from his house and thereafter, his confessional statement was also recorded which has been proved in this case as Ext.-5/3 and in view of the aforesaid circumstances appearing against accused Mofil Khan suggesting his presence and identification. Now onus shifts on the accused Mofil Khan to give probable defence to show that under what circumstances, he was present at the P.O., but the accused Mofil Khan has failed to produce any such probable evidence to doubt his presence at P.O. or his identification. Now onus shifts on the accused Mofil Khan to give probable defence to show that under what circumstances, he was present at the P.O., but the accused Mofil Khan has failed to produce any such probable evidence to doubt his presence at P.O. or his identification. Although it has been tried by the defence by way of producing a defence witness that accused Mofil Khan is a man of big reputation and he is an income tax payee as well as carries a license of arms coupled with the fact that he is also the member of the committee of a power plant, but the defence witness himself admitted before the court that two cases were pending against the accused Mofil Khan and he has got no personal enmity with RPF together with fact that during the course of trial, the learned counsel for the accused Mofil Khan has also admitted by way of filing rejoinder on the petition of the prosecution that in case no. RP 77/94, accused Mofil Khan was sentenced to pay fine of Rs.1,000/- by the learned District & Sessions Judge, thereby admitted his previous conviction confirmed by the appellate court as well as he has admitted that criminal revision no.19 of 2000 is pending against the accused Mofil Khan against the order of appellate court of confirmation of the conviction in R.P. Case No.19/2000 against the accused Mofil Khan. I am of the opinion that no law has given any liberty to any person of whatever stature or reputation to commit any offence. In view of the consistent evidence showing the complicity of the accused in this case, such defence has got no effective value. 20. The RPF officer in not a police officer hence any confession recorded by the RPF officer can be admitted as evidence. In the case in hand, the accused Mofil Khan has confessed his guilt before the RPF officer. He has also failed to give any probable defence to show that under what circumstances, he had put his signature on the confessional statement which he has also admitted in his statement recorded u/s 313 of Cr.P.C.. Moreso, other accused persons in their confessional statements have also implicated the accused Mofil Khan in the alleged crime. 21. He has also failed to give any probable defence to show that under what circumstances, he had put his signature on the confessional statement which he has also admitted in his statement recorded u/s 313 of Cr.P.C.. Moreso, other accused persons in their confessional statements have also implicated the accused Mofil Khan in the alleged crime. 21. Since it has come in the evidence that the coal was recovered from the Railway area and there was not other source, save and except the Railway who could collect the coal from the recovered area. There is no doubt that the recovered coal was the coal of the Railway from two goods trains. Moreso, the recovery of coal has been established by the prosecution by proving the seizure lists of this case and by Material Ext. 22. Although, there is some minor contradictions in the evidence of prosecution witnesses, but since they not affected the substratum of prosecution case, do not diminish its evidentiary value. 23. It is true that there is no independent witness in this case, but it has come in the evidence that the P.O. area situated at remote Railway area and the nearest village at about 1 and ½ km away from the P.O. area. The non-examination of any independent witness is not fatal to the prosecution case. 24. Thus, under the facts and circumstances of this case as discussed above, I come to the conclusion that on the date and time of occurrence, accused Mofil Khan was involved in guiding/supervising the other accused persons collecting Railway coal. He was present near the P.O. area and he identified by the raiding team and on seeing the raiding team, he was able to flee away. Although no coal was recovered from his physical possession, but the circumstances as it has been discussed above, would clearly suggest that he was involved in collecting the coal with help of other accused persons. hence, it can be said that coal was recovered from his unlawful constructive possession, reasonably suspected of having been stolen or unlawfully obtained from the Railway. The accused Mofil Khan has failed to prove that Railway Property came to his possession lawfully. Hence, I find and hold him guilty for offence u/s 3 of R.P. (U.P.) Act, he is accordingly convicted thereunder. ………………..” 16. The accused Mofil Khan has failed to prove that Railway Property came to his possession lawfully. Hence, I find and hold him guilty for offence u/s 3 of R.P. (U.P.) Act, he is accordingly convicted thereunder. ………………..” 16. The learned appellate court also considered the materials and evidences on record and recorded its findings at Para-9 and 10 which read as under: “9. In this regard as per record, trial commenced u/s 3(b) of R.P.(U.P.) Act and to substantiate above charge, the prosecution got examined his witnesses. Amongst them, P.W.-1 Suresh Prasad Singh, as A.S.I. who deposed that on 08.05.2003, he was posted at R.P.F Post Patratu. He alongwith other members of raiding party conducted raid between Tori-Chetar Railway Station and while returning back, Station Master intimated about coal theft at K.M. No.183/27. When they arrived at P.O. being K.M. No. 183/19-21 where 13 to 14 persons were picking up coal near the track, amongst them two persons fled away. One of them was Md. Mofil Khan and another was Md. Hasib and two persons Md. Sanaullah and Md. Mazid @ Bablu were arrested at the spot with coal. They also disclosed that on the direction of Mofil Khan, the coal was stolen from the Goods Train. Then on their disclosure, two tonnes of coal was recovered kept around 20 meters from the track for which seizure list was prepared. During lengthy cross-examination, he brought on record to have seen the accused from 200-meter distance. When they arrived 100 meters to them, then they fled away. He also admitted that they were fleeing in their opposite direction. In this reference, P.W.2 Onkar Nath Prasad who is also a member of raiding party also brought on record like P.W.1 that on the basis of information by Station Master about coal theft from the P.O. He alongwith other members of raiding party conducted raid, in the morning around 07.00 A.M. 14 to 15 persons were picking up coal lying near track and two persons were supervising this theft, they succeeded to run away, who were identified as Mofil Khan and Md. Hasib Mian and both were known to him since earlier. He also supported the factum of recovery of more coal kept around 20-meter distance from the track, which was seized. Hasib Mian and both were known to him since earlier. He also supported the factum of recovery of more coal kept around 20-meter distance from the track, which was seized. Similar is testimony of P.W.3 Mahabir Prasad one of the guards of Goods Train who affirmed that the train to have been forcibly stopped by 10 to 15 persons, who were stealing coal. He intimated this incident to Station Master Tori. Likewise, P.W.4 Shiv Dhani another guard also affirmed the Goods Train to have been stopped at the P.O., however, on the point of coal theft, he brought nothing on the record, but he supports the prosecution version up to maximum extent. Similarly, P.W.5 Purushotam Tiwary who was also member of raiding party. He affirmed the arrest of Md. Sanaullah and Md. Mazid @ Bablu. He also supported the arrest of this appellant during raid and under investigation. He also prepared site plan and recorded the statements of guard of the Goods Train and other witnesses and submitted inquiry report. Next prosecution witness is P.W.6 Ajay Kumar Singh the Divisional Inspector, who was also a member of raiding party and he also affirmed the Goods Train to have been subjected coal theft near K.M. No.183/21. He is also an eye witness of the incident and has deposed to have been 13 to 14 persons indulged in coal theft and two persons fled away were identified. He named this appellant also as one of them. He further affirmed that those who were arrested from the P.O. confessed that on the direction of Mofil Khan, the coal was stolen from the Goods Train. In this case, important aspects for consideration do arise whether this confession can be utilized against this appellant in any manner or not? Generally, such statement is not admissible, however the portion leading to recovery is legally admissible. In this case pursuant to confession, there was recovery of two tonnes of coal kept at a distance of 20 meters from the Railway track where from there was seized and that material Exhibit duly proved during trial as Material Ext-.I. It has also come on record that this appellant was under scanner in respect of offences relating to coal theft since long and was known to him since earlier, therefore, his identification brought on record does not require any T.I.P to be conducted and submissions contrary to is worthless. Not only this, the seizure list brought on record illustrates that those persons arrested namely Md. Sanaullah and Md. Mazid @ Bablu whose signature are available on seizure list, meaning thereby the factum of seizure stands legally proved and the copy of list must have been handed over to them. Further confessional statements of both also been proved as Ext.-5 and Ext.-5/1 and the confession of this appellant is also on record as Ext.-5/3 in which he admits the illegal trade of coal further stealing the same from the trains. So far the statement regarding faulty examination u/s 313 Cr.P.C. examination, sufficient circumstance has been brought on record. In this context the defence version brought on record by Tarun Khan is not at all competent of discredit. The prosecution version what further this witness brought on record regarding business and property as well as fire arm license is totally worthless. 10. It is settled principle that prosecution has to stand on his own legs and for that sufficient evidence has been brought on record for inflicting sentence. It is noticed from the impugned judgment and order that in respect of previous conviction, the material as brought on record, thereafter considering version of both the parties, the court below after recording finding of guilt, imposed sentence u/s 3(b) of R.P.(U.P.) Act which is found to be in consonance to legal proposition and no illegality has crept therein. Accordingly, no interference is required in the impugned judgment and order, hence instant appeal stands dismissed.” 17. After hearing the parties and going through the evidences and materials on record, this Court finds that PW-1, PW-2 and PW-6 were members of the raiding team, PW-3 and PW-4 were guards of the goods trains from which coal was unloaded by the accused persons and PW-5 is the Enquiry Officer of the case. All the prosecution witnesses have fully supported the prosecution case. The prosecution has also proved the confessional statement of co-accused Sanaullah @ Kalal as Exhibit-5, confessional statement of co-accused Md. Mazid @ Bablu as Exhibit-5/1, confessional statement of co-accused Md. Hasib Mian as Exhibit-5/2, confessional statement of the petitioner as Exhibit-5/3 and specimen of coal recovered from the place of occurrence pasted with label as Material Exhibit-I. 18. The prosecution has also proved the confessional statement of co-accused Sanaullah @ Kalal as Exhibit-5, confessional statement of co-accused Md. Mazid @ Bablu as Exhibit-5/1, confessional statement of co-accused Md. Hasib Mian as Exhibit-5/2, confessional statement of the petitioner as Exhibit-5/3 and specimen of coal recovered from the place of occurrence pasted with label as Material Exhibit-I. 18. The evidence of P.W. 1, P.W. 2, and P.W. 6 reveal that when they reached the place of occurrence, 13-14 people were collecting coal which was unloaded from the two goods train No. 7443/7960 at K.M. 183/27 and two persons were supervising them and the persons who were supervising were identified by these witnesses as Mofil Khan (petitioner) and Md. Hasib, both of them ran away from the spot. Two other accused persons were apprehended on the spot who were Md. Sanaulla @ Kalal and Majid Bablu and coal was recovered from their possession on the spot also and two tons of coal was recovered from another place near Railway line and consequently two separate seizure list were prepared with regard to recovery of coal which were Exhibit-1 and Exhibit 1/1. 19. P.W. 1, P.W. 2, and P.W. 6 who had identified the petitioner on the spot as the person supervising the theft of railway property (coal) have also identified the petitioner in the court and during cross examination, their evidence with regard to the identification of the petitioner remained intact. The P.W. 6 during his cross examination has also stated that they were keeping vigil on the petitioner prior to the occurrence since the petitioner was a known criminal relating to theft of coal. The three witnesses knew the petitioner and also identified the petitioner in the court and there is no evidence of any enmity between the petitioner and these official witnesses. Rather the sole defence witness during cross examination has stated that there was no enmity between the petitioner and RPF. The guards of the two trains were examined as P.W. 3 and P.W. 4 and they have fully supported the prosecution case regarding theft of coal from the train on the date, time and place of occurrence, although they had not seen or identified the persons who had unloaded the coal from the train. The guards of the two trains were examined as P.W. 3 and P.W. 4 and they have fully supported the prosecution case regarding theft of coal from the train on the date, time and place of occurrence, although they had not seen or identified the persons who had unloaded the coal from the train. They had fully supported that the trains were detained in a clandestine manner and theft of coal had taken place at the time and place of occurrence. Thus, the chain of events with regards to the theft of railway property (coal) under the supervision of the petitioner is complete and the learned trial court has given a clear findings on this aspect of the matter. The learned trial court has recorded a clear finding based on materials on record that on the date and time of occurrence, accused Mofil Khan (petitioner) was involved in guiding/supervising the other accused persons collecting Railway coal; petitioner was present near the place of occurance area and was identified by the raiding team and on seeing the raiding team, he was able to flee away. The learned trial court has also recorded that although no coal was recovered from the physical possession of the petitioner but it was clear that the petitioner was involved in collecting the coal with help of other accused persons. The learned trial court concluded that coal was recovered from unlawful constructive possession of the petitioner and the coal was reasonably suspected of having been stolen or unlawfully obtained from the Railway. The petitioner, Mofil Khan has failed to prove that Railway Property came to his possession lawfully. After having recorded the aforesaid findings, the learned trial court held the petitioner guilty of committing offence u/s 3 of R.P.) U.P.) Act. The learned appellate court after appreciating the materials on record has also recorded a finding that the petitioner was found supervising the theft of railway property (coal) stolen from the train. 20. Thus, the basis of identification and involvement of the petitioner in theft of railway property and that he was supervising the theft of the railway property on the spot is based on the version and his identification and presence on the spot by the members of the raiding party and there is no evidence regarding any enmity with the petitioner and thus rules out the possibility of false implication. 21. 21. This is over and above the fact that all the accused persons who were apprehended including the petitioner have confessed their guilt in their confessional statement recorded by P.W-5 (enquiry officer), the enquiry officer who was the officer in Railway Protection Force (RPF). The confessional statements have been exhibited as exhibit - 5,5/1,5/2 and 5/3. He had also recorded the statement of the two guards of the train who were examined as P.W. 3 and P.W. 4. He exhibited the Enquiry report. This witness was also fully cross examined. During his cross examination he has stated that the coal was unloaded from the two goods train but he had not recorded the statement of the drivers of the train. 22. In the Judgment passed by the Hon’ble Supreme Court reported in (1980) 4 SCC 600 , the applicability of the provision of Section 25 of the Evidence Act, when applied in relation to officer of RPF (Railway Protection Force) making enquiry under Section 8(1) of the aforesaid Act of 1966 has been considered. The Hon’ble Supreme Court held that an Officer of RPF conducting an enquiry under Section 8(1) of the aforesaid 1966 Act, having not been vested with all the powers of Officer-in-charge of a police station making investigation under Chapter XIV of the Code of Criminal Procedure and on several material aspects, the enquiry under 1966 Act differs from investigation under Criminal Procedure Code. It has been held that RPF officer could not be deemed to be a “police officer” within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section. It has been held in Paras-39 and 58 of the judgement as under: “39. From the comparative study of the relevant provisions of the 1966 Act and the Code, it is abundantly clear that an officer of the RPF making an inquiry under Section 8(1) of the 1966 Act does not possess several important attributes of an officer in charge of a police station conducting an investigation under Chapter XIV of the Code. The character of the “inquiry” is different from that of an “investigation” under the Code. The character of the “inquiry” is different from that of an “investigation” under the Code. The official status and powers of an officer of the Force in the matter of inquiry under the 1966 Act differ in material aspects from those of a police officer conducting an investigation under the Code. 58. In the light of the above discussion, it is clear that an officer of the RPF conducting an inquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating “police officer”. Thus, judged by the test laid down in Badku Joti Savant, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a “police officer” within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.” (emphasis supplied).” 23. Considering the ratio of the aforesaid Judgment passed by the Hon’ble Supreme Court, the A.S.I of Railway Protection Force, who had conducted the enquiry under Section 8(1) of the aforesaid Act of 1966 Act, was not a “police officer” within the meaning of Section 25 of Evidence Act and therefore, any confessional or incriminating statement recorded by him in the course of an enquiry under Section 8(1) of the aforesaid Act of 1966 Act cannot be excluded from the evidence by referring to Section 25 of the Evidence Act. This is over and above the findings recorded above that the petitioner has been convicted on the basis of direct evidence and not on the sole basis of his confession and/or confession of the co-accused recorded by the enquiry officer (P.W-5). Further, in the present case, the confessional statement of the petitioner as well as the confessional statements of the co-accused persons disclosing involvement of the petitioner in the commission of the offence have been found to be reliable and not hit by Section 25 of the Evidence Act. Further, in the present case, the confessional statement of the petitioner as well as the confessional statements of the co-accused persons disclosing involvement of the petitioner in the commission of the offence have been found to be reliable and not hit by Section 25 of the Evidence Act. In the present case, this is coupled with the fact that the confessional statement of the petitioner was admitted in evidence without any objection from the side of the defence. This is coupled with the fact that the three witnesses namely P.W-1,2 and 6 who were members of the raiding team have identified the petitioner on the spot irrespective of his confessional statement. Although the petitioner ran away from the spot but he was identified on the spot directly supervising the theft of railway property (coal). The sole defence witness during his cross examination clearly stated that there is no enmity between the petitioner and RPF and during cross examination of the prosecution witnesses also there has been no material regarding any enmity between the petitioner and RPF personnel including the prosecution witnesses. The argument of the petitioner that the petitioner was convicted only on the basis of his confessional statement is also correct as he was identified by 3 members of the raiding team namely, P.W-1.2 and 6 and who identified him as the person along with another supervising the theft of coal by 13 to 14 co-accused persons. 24. Section 3(a) of the Railway Property (Unlawful Possession) Act 1966 clearly mentions that 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 punishable under Section 3(a) of the aforesaid Act, 1966, if it is his first offence and Section 3(b) of the Act clearly mentions that for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees. 25. 25. This Court is of the considered view that not only the person who has been physically found in possession of the stolen Railway Property, but also the person who is proved to have been in constructive possession of any stolen Railway Property, both are covered by Section 3 of the aforesaid Act of 1966. As per the findings recorded by the learned trial court and the learned appellate court, it was the petitioner under whose supervision the theft of coal was committed. In view of the aforesaid findings, merely because the Railway Property was not seized from the physical possession of the petitioner, it does not take him out of the purview of Section 3 of the aforesaid Act, 1966. Accordingly, the Railway property having not been seized from the physical possession of the petitioner, is not fatal to the prosecution case and the learned trial court has rightly convicted the petitioner for the offence under Section 3 of the aforesaid Act 1966 by holding that the petitioner was found in constructive possession of the stolen railway property (coal) and has sentence him under Section 3(b) of R.P.(U.P.) Act. There is consistent material on record that the theft of coal was conducted from the two trains by 13 to 14 persons under direct supervision of the petitioner and one another accused and the coal being the railway property was recovered from the possession of the apprehended accused persons and also from the spot where the coal was stacked. The argument that the petitioner was not found in possession of the property is devoid of any merit, hence rejected. 26. This Court finds that all the basic ingredients have been established by the prosecution beyond reasonable doubt and concurrent findings of facts have been recorded by the learned courts. This court is of the view that the petitioner was proved to have control and dominion over the railway property and it was under his supervision the railway property was caught while being stolen by 13 to 14 persons and therefore even if the petitioner was not found in physical possession of the property the same is not fatal to the prosecution case. 27. This Court further finds that the minimum sentence prescribed under Section 3(b) of R.P.(U.P.) Act i.e. Rigorous Imprisonment for two years with fine of Rs.2,000/- has been awarded to the petitioner by the learned trial court. 27. This Court further finds that the minimum sentence prescribed under Section 3(b) of R.P.(U.P.) Act i.e. Rigorous Imprisonment for two years with fine of Rs.2,000/- has been awarded to the petitioner by the learned trial court. It is not in dispute that the petitioner was already convicted in two cases relating to theft of railway property and merely because he was no specifically charged under section 3(b) of R.P.(U.P.) Act and was charged by referring to section 3 of R.P.(U.P.) Act without specific reference to section 3(a) or section 3(b) is neither fatal to the conviction of the petitioner nor fatal to the punishment imposed upon the petitioner nor the petitioner has been prejudiced in any manner by framing of charge having reference to section 3 and without specific reference to section 3(a) or section 3(b). The basic ingredients for offence under section 3(a) and 3(b) are the same but in case of second or subsequent conviction punishment is different and the petitioner has been punished under section 3(b) of the R.P.(U.P.) Act. 28. Considering the aforesaid facts and circumstances of this case, this Court does not find any illegality or perversity in the impugned judgements. Therefore, the judgement of conviction and sentence passed by the learned trial court and upheld by the learned appellate court do not call for any interference under revisional jurisdiction. Accordingly, this criminal revision is dismissed. 29. The bail bond furnished by the petitioner is cancelled. 30. Interlocutory Application, if any, is disposed of. 31. Let the original trial court records of the case be sent back to the court concerned. 1. Let a copy of this judgement be communicated to the court concerned through Fax/e-mail.