JUDGMENT

K. Jayachandra Reddy, J. - Both these appeals are filed against the common judgment of the High Court of Calcutta reversing the order of acquittal passed by the Sub Divisional Judicial Magistrate. Siliguri.

2. Six accused were tried by the Sub Divisional Judicial Magistrate for an offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (Act for short). According to the prosecution on 20.8.1972. M.K. Tewari P.W. 1 was posted at Siliguri Junction diesel shed as S.I. of R.P.F. On that day at about 3.30 hrs. he found 617 persons pushing a hand trolley towards gate No. 5 leading to shunting neck which was loaded with some heavy materials. P.W. 1 suspected the activities of those persons and raised an alarm by blowing his whistle. As soon as he came out of gate No. 3 he also found A.S.I., P.W. 3 and another Rakshak near Y.M. Office. He told them to arrest the persons for moving the trolley. All of them rounded them up but three of them managed to escape and they could arrest three accused persons namely P.C. Sen Gupta. K. Appanaidu and Budhi Kr. Routh. original accused Nos. 4 to 6. P.W. 1 and the other officer found that the trolley was loaded with two radiator cores. P.Ws. 1 and 3 blew their whistles obviously to attract the attention of other Rakshaks on duty. Original accused Nos. 1 to 3 who were the Rakshaks and were on duty on that night, came 15 to 20 minutes late. The prosecution case against them is that they wantonly deselected their duties of keeping watch with a view to facilitate other culprits to take away the railway property in the trolley and thus they committed an offence under Section 114 I.P.C. read with Section (a) of the Act. The accused pleaded not guilty. The learned Magistrate acquitted A- to A-3 on the ground that there was no proof of abetment of the offence by them. He also acquitted A-4 to A-6.on the ground that all the ingredients of Section 3 of the Act are not made out. The High Court held that A-1 to A-3 were not found on duty at the time allotted to them and it is only after blowing whistles by P.W. 1 and others that they came and their conduct in coming late would show that they facilitated the commission of the offence. The High Court also held that A4 to A-6 were actually found moving the trolley with the railway property after removal and. therefore, an offence under Section 3(a) was proved and accordingly set aside the order of acquittal and convicted all the six accused. A-1 to A-3 were convicted under Section 3(a) of the Act read with Section 114 I.P.C. and sentenced to undergo three years rigorous imprisonment. A4 to A-6 were convicted under Section 3(a) of the Act and sentenced to undergo three years rigorous imprisonment. Questioning the same, the present appeals have been filed. Criminal Appeal No. 266182 is filed by A-1 Beda Nand Yadav and A-2 Monilal Dutta and Criminal Appeal No. 713/ 83 is filed by A-4 to A-6. A-3, Cham Bhushan Dass is not before us.

3. Learned counsel appearing for A-1 and A2. Rakshaks, submitted that there is no material whatsoever that they alongwith another Rakshak Cham Bhushan Dass abetted the commission of the offence by the other accused. It is also submitted that Siliguri Loco Shed is very big one and the mere fact that these Rakshaks who were on allotted duty on that night came a little late after hearing the whistles, would not necessarily lead to a conclusion that they abetted the offence. P.W. 1 is the main witness in this case. He deposed that he saw six persons pushing the trolley and he blew the whistle and rounded them up but only three could be arrested. His evidence establishes that A4 to A-6 were caught red-handed alongwith others who escaped and they were moving the trolley loaded with railway property namely two radiator cores. The reasoning of the learned Magistrate that the possession as such was not proved is incorrect. When once they moved the property front a proper place that itself shows that they c