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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
LALITHA KANNEGANTI, J.
Syed Shajahan S/o S. Hussaian Mia – Petitioner
Versus
The State of Andhra Pradesh and Others – Respondents
Criminal Revision Case No. 1003 of 2015
Decided On : 05-11-2021
Criminal Procedure Code,1973 – Section 397,401 and 313 - Railway Property (Unlawful Possession) Act, 1966 - Section 3(a) and 10 - Indian Evidence Act – Section 25 - Trees cut off belongs to Railway - Unlawful possession of railway property - Penalty for theft - Case of prosecution is complainant along with his staff had apprehended near station board, Railway Station when he was carrying one sickle - On enquiry stated that he is doing wood business and purchased some babul trees at railway station yard behind station building and paid sum as advance to them and he already had cut said babul trees about certain tones and taken to his home by one tractor by engaging laborer, who are for cutting and loading - Further, stated that out of 11 tons of babul trees, he sold out 10 tones to some unknown persons and one ton of babul tree pieces are in front of his house and said one had voluntarily produced cash sale proceeds of 8 tones and remaining 2 tones amount of certain amount was already paid complainant along with staff, noticed crime tractor which is involved in this crime and later complainant seized said tractor - After completion of investigation, charge-sheet is filed - Whether there is any illegality or irregularity committed by Courts below in appreciating evidence on record.
Findings of the Court :
A bare reading of referred Clauses, it is clear that Enquiry Officer is required to interrogate accused with the facts and circumstances of case and then record the statement made by accused - Similarly, if accused wants to make a confessional statement, it should be recorded in presence of two respectable and independent witnesses, who should also be required to affix their signatures thereon - Accused should be produced before Magistrate of competent jurisdiction and the confession should be recorded by such Magistrate, as required by the provisions of Sections 164 and 281 of the Code of Criminal Procedure - In the instant case, even assuming that Railway Protection Force authority has recorded the confessional statement of the accused, same not been recorded as contemplated under the Clauses 14 and 14(1) of RPUP Act - Both the Courts below failed to look into the provisions in its proper perspective and thereby rendered the conviction and sentence against the petitioner erroneously - In facts and circumstances of case, this Court is of the view that, Courts below failed to appreciate evidence on record in right perspective and erroneously convicted petitioner - Hence, the conviction and sentence passed against the petitioner/A-4 is liable to be set aside.
Result : Criminal revision allowed
ORDER :
1. This criminal revision case is filed under Section 397 and 401 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) assailing the judgment dated 16.09.2014 in Criminal Appeal No. 19 of 2014 on the file of VI Additional Sessions Judge, Gooty, allowing the appeal in part, confirming the conviction recorded against petitioner/A-4 in C.C. No. 134 of 2012 on the file of Special Judicial Magistrate of First Class for Railways, Guntakal for the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short “RPUP Act”) and altering the sentence imposed against him to undergo simple imprisonment for one year and to pay fine of Rs. 5,000/- in default to undergo SI for 3 months to that of fine of Rs. 5,000/- only.
2. The case of the prosecution is that on 19.02.2012 at about 16:30 hours, the complainant along with his staff had apprehended A-1 near station board, Gangayapalli Railway Station when he was carrying one sickle. On enquiry A-1 stated that he is doing wood business and purchased some babool trees at Gangayappli railway station yard behind the station building from A.2 and A.3 for Rs. 5,500/- and paid Rs. 3,400/- as advance to them and he already had cut the said babool trees about 11 tones and taken to his home by one tractor bearing No. AP-04W-7883 by engaging labourers, who are A.6 to A.10 for cutting and loading. Further, A.1 stated that out of 11 tones of babool trees, he sold out 10 tones to some unknown persons and one ton of babool tree pieces are in front of his house and A.1 had voluntarily produced cash of Rs. 13,600/- towards sale proceeds of 8 tones and remaining 2 tones amount of Rs. 3,400/- was already paid to A.2 and A.3 and later A.1 identified A.2 and A.3 at Kamalapuram Adda Road and they accepted their version and they paid Rs. 700/- each voluntarily and later on the same day all of them proceeded to APSRTC Bus stand, Kadapa, where A.2 and A.3 identified A.4 who in turn admitted that he received cash of Rs. 2,000/- from A.2 and A.3 being sale proceeds of babool trees and produced the said cash and on 25.03.2012 complainant along with staff, noticed crime tractor bearing no. AP-04W-7882 which is involved in this crime and later the complainant seized the said tractor. After completion of investigation, charge-sheet is filed.
3. On appearance, charges under Section 3(a) of RPUP Act was framed, read over and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
4. To substantiate its case, prosecution examined PWs. 1 to 7 and got marked Exs.P-1 to P-56 and M.Os.1 and 2. After closure of prosecution evidence, accused were examined under Section 313 Cr.P.C. with regard to incriminating material available against them, in the evidence of the prosecution witnesses, to which they denied. No oral evidence or documentary was adduced on behalf of the accused.
5. Relying upon the evidence let in by prosecution, the trial Court convicted the accused for the charge referred to above. Challenging the same, the petitioner/A-4 preferred Criminal Appeal No. 19 of 2014 on the file of VI Additional Sessions Judge, Gooty and the same was partly allowed on 16.09.2014 confirming the conviction and altering the sentence awarded by the trial Court, as indicated above. Challenging the same, present appeal has been filed.
6. Heard Sri. G. Venkata Reddy, learned counsel for petitioner and the learned Assistant Public Prosecutor for respondent-State.
7. Learned counsel for the petitioner submits that taking cognizance of offence under Section 3(a) of RPUP Act and framing the charge under said offence cannot be sustained, as the Amendment Act, 2012 has come to force from 15.08.2012 whereas the alleged offence took place on 19.02.2012. He submits that property referred in the complaint is not a Railway Property and there is no proof of evidence produced before the Court to establish that the money seized is sale proceeds of Railway Property as defined in clause 2(d)
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