IMPORTANT POINT
When the prosecution witness was fully cross-examined before the charge was framed but could not be examined after the framing of charge due to his death. the evidence of Such witness can be read against accused.

JUDGMENT

Mukul Gopal Mukherjee, - J. - This revisional application is directed against an appellate judgment and order passed on 27.8.1988 by the learned Additional Sessions Judge, 3rd Court, Howrah in Criminal Appeal No. 5 of 1988 whereby the order of conviction under section 3(a) of the Railway properties (Unlawful Possession) Act, 1966 and sentence of rigorous imprisonment for a period of three years along with payment of fine of Rs. 1,000/- in default rigorous imprisonment for a further period of three months as passed by the learned Chief Judicial Magistrate, Howrah on 8.1.1988 in Case No. 182 of 1984 stood confirmed.

2. The prosecution case inter alia is that Sub Inspector, J.K. Saha attached to R.P.F., Tikiapara, South-Eastern Railway got some prior information on 10.10.1981 pursuant to which in course of a secret watch at Ramrajatala station, he found the petitioner with one side cloth bag moving in a suspicious manner on platform No. 1 at about 630 p.m. He was in company with three other persons as and when the petitioner was apprehended, the other associates of the petitioner managed to run away but later on they were arrested. In the bag allegedly found in possession of the petitioner, 17 pieces of aluminum strips of Railway E.M.U. coach window shutter were found. It was the prosecution allegation that these properties were stolen by the petitioner and his associates from the E.M.U. coach Nos. 10243 and 10843 on the sight of October 8/9, 1981 and that the present petitioner and his associates removed those materials from the E.M.U. coaches with the help of instruments which were kept concealed in a tea stall of one Gopal Chandra Adhikary of Kulgachia Station Road after the operation. As and when the petitioner and his associates went to Ramrajatala station to dispose of the stolen property the petitioner was accosted. The instruments i.e., the implements with the aluminium strips were cut from the window shutter were recovered and seized from inside the tea stall of one Gopal Chandra Adhikary pursuant-to the statement of the present accused petitioner. The defence was one of false implication.

3. As many as 15 witnesses were examined on behalf of the prosecution at the trial. The defence, however, did not examine any witness and failed to account for the unlawful possession of the aluminium strips. The learned Trial Magistrate came to a positive finding that theft was committed in respect of 17 pieces of aluminium strips from the E.M.U. coaches which actually were seized from the petitioner. The learned Magistrate acquitted the three associates of the petitioner mainly on the ground that there was no direct evidence to connect them with regard to possession of the incriminating articles. The learned Magistrate also took into consideration the confessional statement of the present accused petitioner but with regard to the evidentially value of the said confessional statement against the other associates, he rightly held that the same could not be used a substantive piece of evidence, more so in view of the confessional statements having been elicited from the other associates after the recovery of the articles. The learned Magistrate convicted the present petitioner mainly on the ground that all the prosecution witnesses corroborated with each other in connection with the apprehension of the present petitioner and testified about the recovery of 17 pieces of aluminium plates used for E.M.U. coaches from him and that them urinals had been properly identified. He also believed in the factum of recovery of the implements which were used for cutting aluminium strips from the tea stall of Gopal Chandra Adhikary at Kulgachia station road pursuant to the statement of petitioner. The instruments concealed at the tea stall were round kept in a handbag and those instruments included two hacksaws five hacksaw blades and hammers etc. The learned Magistrate also believed that a memo was sent to the Officer-in-charge. R.P.F. regar