Criminal Appeal No.47 of 1993

10th June, 2008

Petitioner Counsel: Mr. D. B. PATEL
Respondent Counsel: Mr. RIYAZ AHMAD

Cases Cited:
State of Uttar Pradesh Vs. Vyas Tewari, AIR 1981 SC 635 [Para 5]
Chandrappa Vs. State of Karnataka, 2007 ALL SCR 961 : 2007 AIR SCW 1850 [Para 12]

JUDGMENT

JUDGMENT :- The State of Maharashtra, appellant, has preferred this appeal to challenge the judgment and order of acquittal of the respondents for the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, [in short R.P. (U.P.) Act.].

2. It may be stated that the present respondent and one Shalikram Raut, then accused No.1 (whose trial was separated) were prosecuted for the offence under Section 3(a) of the R.P. (U.P.) Act in R.C.C. No.476/87 before Judicial Magistrate, First Class, Railway Court, Nagpur. It was alleged that in the night between 23-05-87 and 24-05-87, one truck bearing No.Mh-G 6302 was apprehended on Patan Wani Road by the police officials of Police Station Pandharkawda. It is alleged that it was found under suspicious circumstances. The said truck was loaded with iron rail pieces. Only truck driver then Accused No.1 Shalikram was found in the said truck. He was apprehended. It is alleged that the other persons who were in the truck ran away taking advantage of the darkness. The said truck driver, then accused no.1 Shalikram, could not give any satisfactory explanation regarding the possession of the said rail pieces. So he was taken to the police station Mukutban along with the truck. The truck was seized by P.S.O. Shegaonkar. The statement of said Shalikram was recorded and thereafter he was arrested and transferred to Police Station Patan as the jurisdiction over the subject matter was with P. S. Pathan. Offence under Section 379, IPC vide Crime No.18/87 was registered against the accused Shalikram at Police Station Patan. The said property was found to be railway property. The permanent Ways Inspector of Central Railway had reported about the theft of such property to R.P.F. Ballarsha. The then Inspector R.P.F. Ballarsha Shri. Patrikar obtained the custody of the accused Shalikram. It is alleged that during investigation, he made a confessional statement to the effect that Rampal Sahu (present respondent no.1), Ashok Sharma (present Respondent No.3) had committed theft of the said property from one Level Crossing Gate and loaded the same in the truck. He further made a statement that due to overload, 4 rail pieces were thrown by them in open space of the field at about 1 furlong from the place of occurrence. The said Inspector Patrikar then took him to discover the said rail pieces, which were seized. It is alleged that said Shalikram also handed over one cash memo of Maroti Steel Company at Ballarsha signed by Rampal Sahu before R.P.F. It is alleged that said Shalikram told that Rampal had given it to him for octroi purpose. Later, accused Rampal i.e. respondent no.1 and Sheikh Amir present respondent no.2 (as he died during the pendency of the proceedings, the proceedings against him stoods abated). Later on the complaint was filed by Inspector R.P.B. Ballarsha against the said accused Shalikram, respondent Rampal and respondent Sheikh, respondent Ashok Sharma and one Namdeo. The accused Namdeo could not be apprehended. The accused Shalikram also did not attend the trial, so the trial was proceeded only against the present respondent No.1 Rampal, deceased respondent No.2 Sheikh Amir and respondent no.3 Ashok Sharma.

3. Prosecution examined R.P.F. Inspector Choudhari, before framing of charge under Section 3(a) of the R.P. (U.P.) Act. I need not go into the details. Suffice it to say that the respondents pleaded not guilty. According to them, they are not responsible for any act done by the truck driver Shalikram. They have also contended, the statement recorded by Shalikram does not amount to confessional statement to R.P.F. Authorities. It is their defence that they have been falsely implicated.

4. The learned trial Judge has examined as many as 11 witnesses produced by the prosecution. He found that no railway property i.e rail pieces were seized from the present respondents. He further found that the alleged confessional statement of the said Shalikram and also that of Sheikh Amir and the present Respondent Rampal are not sufficient to hold them guilty. He has also found that the prosecution has failed to establish that the said property was the railway property. Consequently, he held these respondents not guilty of the offence charged and therefore, he acquittal the respondents. He further directed to arrest the absconding accused Shalikram and Namdeo and to file fresh charge-sheet against them. He did not pass any order regarding disposal of the property for want of trial of the accused Shalikram and Namdeo. This judgment of acquitted dated 01-04-1992 passed by Judicial Magistrate, First Class, Railway Court, Nagpur, is challenged in this appeal.

5. Learned A.P.P. Shri. D. B. Patel, submitted that as per the provisions of R.P. (U.P.) Act, confessional statement of the accused are admissible in evidence. According to him, the rail pieces found in the truck were found to be railway properties. The statement of driver Shalikram clearly incriminates the present respondents. As such, he contended that the circumstances brought on record clearly established that the respondents/accused were involved in the incident and commission of theft of the said rail properties and as the said Shalikram was found in possession of the said railway property in a truck driven by him and he had made a confessional statement to implicate the present respondents, the present respondents are liable for the offence under Section 3(a) of R.P. (U.P.) Act. He relied on the observations of the Apex Court in AIR 1981 SC 635 The State of Uttar Pradesh Vs. Vyas Tewari, to contend that confessional statement made to R.P.F. official is admissible as they are not police officials.

6. As against this, learned counsel for the respondent Shri. Riyaz Ahmad has contended that the articles seized were not proved to be serviceable railway articles. He further submitted that the learned trial Judge has taken the right view of the matter and this being appeal against acquittal, it cannot be considered to be perverse, so as to call interference by this appellate Court. According to him, though confessional statement to R.P.F. officials are admissible, as the R.P.F. authorities did not follow the procedure laid down, the same would not bind the accused/respondent. Therefore, he submitted that the appeal be dismissed.

7. In order to appreciate the rival contentions of the parties, it is necessary to bear in mind that in view of the authorities referred above, the R.P.F. authorities are not the police officers. But the question would be whether the statements made by the accused to them in the nature of confessional statement can be said to be admissible in evidence so as to convict the other accused, in the instant case.

8. In this behalf, it is necessary to note the provisions of procedure of inquiry into the offence under Railway Properties (Unlawful Possession) Act, 1966. By Rules 14 and 15 (vide Manual of Railway Laws), it is provided thus :

"14. Record of oral examination and statements of witness.- The Enquiry Officer shall then examine orally (interrogate) the person so summoned concerning the facts and circumstances of the case and record any statement made to him by such person, which will form a part of the case record.

15. If the accused wants to make a confessional statement, the same should be recorded in the presence of two respectable and independent witness/witness who should also be required to affix their signatures thereon. He should also be produced before a Magistrate of competent jurisdiction and the confession shall be recorded by such Magistrate as required by the provisions of the Code of Criminal Procedure, 1973. (sections 164 and 281)."

As such, when it is no case of the prosecution that the accused were produced before the Magistrate of competent jurisdiction and their confessions were recorded by the said Magistrate, the same cannot be said to be sufficient to form basis of the conviction of the accused.

9. Therefore, even if it is assumed for a moment that respondent Sheikh Amir or the absconding accused Shalikram has made any confessional statement before the R.P.F. authority, that fact would not be sufficient to convict the present respondents.

10. The learned trial Judge has rightly observed that there is no direct evidence against the present respondent and therefore, merely on the strength of alleged confessional statement, they cannot he held guilty. I do not see any perverseness in the aforesaid conclusion.

11. As regards the said property being railway property, the learned trial Judge has found that there are no identification makes on the said property. He has also rightly found that the report of theft of the said alleged rail properties was not co-related with the seizure of the said property. On the contrary, there was reason to believe the statement of accused Rampal that he had purchased the rail pieces found in the truck from railway department as per railway receipt. He has also found that no specific reason was mentioned in the certificate issued by Way Inspector as to why those rail pieces were considered as serviceable. He has also noticed that the expert witness has deposed that scrap rail means rail pieces which are not serviceable and respondent Rampal Sahu has a genuine railway receipt and that receipt with him would show that he had purchased 18 tonnes of scrap rail in the railway auction. In these circumstances, view taken by the learned trial Judge cannot be said to be incorrect or perverse to the record.

12. As regards scope of consideration of appeal against acquittal, the principles laid down by the Apex Court in Chandrappa's Case, reported in 2007 AIR SCW 1850 : [2007 ALL SCR 961], Chandrappa & ors. Vs. State of Karnataka are attracted. The following are the principles laid down regarding the powers of the appellate Court while dealing with the appeals against the order of acquittals.

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on question of fact and of laws';

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by trial Court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

13. In this view of the matter, it is difficult to say that the view taken by the learned trial Judge is perverse to the record & his conclusions are so unsustainable so as to be liable to be interferred in the appeal against acquittal.

As such, the appeal needs to be dismissed. The same is dismissed.

Appeal dismissed.