The confessional statements made by the accused persons, the expert opinion, and the retrospective nature of the amending provisions were crucial in establishing the guilt of the accused persons under the Railway Protection (Unlawful Possession) Act, 1966.

Shivakant Prasad, J.

1. The instant appeal is directed against the judgment dated 14th July, 2015 passed by the learned Judicial Magistrate, 2nd Court, Rampurhat, District-Birbhum in CRR 159 of 2003 (T.R 160 of 2004).

2. The appeal is at the instance of Inspector, Railway Protection Force, Rampurhat, Eastern Railway. By the impugned judgment, the learned Magistrate held the accused persons not guilty to the offence punishable under Section 3(a) of the Railway Protection (Unlawful Possession) Act, 1966 whereby and whereunder the accused persons were acquitted in terms of Section 248(1) of the Code of Criminal Procedure and set at liberty.

3. The grounds taken on behalf of the appellant is that the learned Court below has erroneously interpreted the provision of Section 2(d) of the said Act by ignoring the prosecution report and the confessional statement of the accused persons in the absence of any documentary evidence.

4. It is contended that learned Magistrate has misconstrued the provision of Section 3(a) of the Railway Protection (Unlawful Possession) Act, 1966 holding that the prosecution has failed to prove the material exhihit-1, as not being the exclusive railway property though the railway expert has suggested in its report exhibit-6 that high-speed diesel is exclusively used in railway. So the diesel under seizure cannot be said to be available in the open market.

5. The prosecution case in brief is that “in the night of 16/17-6-03 complainant IPF/RPH along with ASI/S.K Saha, and staff namely, C/9990 B.N. Yadav, C/A592 K. Karmakar all of RPF/HWH.2 remained in secret watch at up fueling point/RPH from 02.40 hrs. At about 03.00 hrs. it was noticed from a considerable distance that some unknown persons came with a plastic Jar and a plastic pipe and unloaded diesel oil from Engine No. WDG-2/14771 standing on line no. 6 at up fueling point/RPH in connivance with Driver and Asstt. Driver on duty. Then Driver and Asstt. Driver handed over the jar to the criminals. In the mean time they were challenged and surrounding from all sides and apprehended with the recovery of one plastic jar containing about 45 liters of diesel oil while all the outsiders managed to escape leaving behind the loaded diesel jar on the spot. On being asked the driver & Asstt. Driver disclosed their name & address as (1) Gregory G. Hembram S/o Lt. Ijaek Hembram Diesel Driver HQ/RPH. Living in Rly Qtr. No. 78/A Loco Colony, RPH, Permanent address Vill.+P.S.+Dist. Gudda, Jharkhant, (2) Binoy Kr. Singh (B.K. Singh), S/o Ujagar Singh Vill.-Majholi, P.S. Bihia, Dist-Bhojpuri, Bihar. At present living at Rly. Qtr. No. 106/C Loco Bazar, Rampurhat. On further interrogation they stated that Amiya, Raja, Kajal Sk. @ Kajla S/o Jabar Sk. of Vill- Math para, P.S. Rampurhat, accd. Bijla Sk. of Pakuria all of P.S. Rampurhat Dist-Birbhum, were present at the spot for committing theft of diesel oil. It is reasonably suspected that the property was stolen or unlawfully obtained from the Railway Engine which were seized at the spot in presence of the witnesses.

6. Again 5 liters of D/oil seized from the said engine no. 14771 WDG-2 in presence of F/C Recover & CIB/HWH-2 at the spot as sample.

7. On the basis of the above complaint, after usual investigation, the prosecution report was submitted against both the arrested accused persons and four absentees accused persons for the offence punishable under Section 3(a) of R.P.U.P Act, 1966. In the course of investigation it has been found that driver, G. Grogery Hembram, during his duty at about 02.40 hrs. took charge of the Engine No. 14771 WDG-2. After a while three or four outsiders came to the spot with one plastic jar and demanded diesel from the Engine. At first said Hembram refused to give them diesel oil from the engine. He, after discussion with Assistant Driver B.K. Singh, agreed to give diesel and opened the cover of the nozzle of said Engine and supplied about 45 liters of diesel oil. As soon as the jar was load