IMPORTANT POINT
The court emphasized the importance of discretion in sentencing, particularly under the Probation of Offenders Act, considering the offender's background and the nature of the crime.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. P.J. Saikia, learned counsel for the petitioner and Mr. D.K. Dey, learned Standing Counsel, Railway for the sole respondent.

2. The present criminal revision petition under Sections 397/ 401 read with Section 482 of the Code of Criminal Procedure, 1973 is filed challenging the legality, propriety and correctness of the judgment and order dated 05.06.2009 passed by the learned Special Judicial Magistrate (Railway) First Class, Tinsukia in connection with SR/CR Case No. 174/2005 vide RPF/POST/MXN Case No. 1(4) 2005 convicting the petitioner and sentencing him to undergo Simple Imprisonment (SI) for 6 (six) months. Further, the challenge is against the judgment and order dated 12.08.2010 passed by the learned Sessions Judge, Sivasagar in Criminal Appeal No. 7(3)/2009 upholding the impugned judgment and order dated 05.06.2009, as noted above.

3. The prosecution story in nutshell is that:

(i) On 21.04.2005, the Inspector of RPF Mariani N.F. Railway, lodged a complaint alleging that on 18.04.2005 at about 17:00 hours, he received an FIR from the Senior Section Engineer (SSE), P-way, N.F. Railway Simaluguri regarding the theft of CST/9 Pot and Tie Bars with fittings from KM No. 25/0-13 in between Simaluguri town and Dishang Siding station in the night of 17/18.04.2005. On receipt of the aforesaid information, the complainant along with SI Jibeswar Mushahary, the SSE, Sri Bharat Kakoty jointly verified the fact and made a joint verification of the spot. Thereafter, search was conducted but the theft items could not be recovered. However, on 20.04.2005, on receipt of a secret information, the said complainant along with other office personnel with the assistance of the police of Demow police station as well as the independent witnesses, conducted search in the scarp damp of the accused/petitioner and recovered various materials belonging to the railways. On enquiry, the scarp damp owner, i.e., the accused/petitioner failed to produce any document and could not reply satisfactorily with regard to his possession of the said materials.

(ii) Based on the aforesaid complaint, Case No. 1(4)/2005 under Section 3 (a) of the Railway Property (Unlawful Possession) [RP (UP), in short] Act, 1966 was registered and after completion of the investigation, charge sheet was filed under Section 3 (a) of the RP (UP) Act, 1966 against the accused/petitioner and another accused. On the basis of the evidences adduced before the charge and after holding a camp Court for the exhibition of the materials, charge under Section 3 (a) of RP (UP) Act, 1966 was read over and explained to both the accused person to which they pleaded not guilty and claimed to be tried.

(iii) Prosecution examined 12 (twelve) witnesses which included the complainant and the Enquiry Officer to bring home its charge and also exhibited 14 documents in its support. These witnesses were vigorously cross-examined by the defence.

(iv) On completion of the prosecution evidence, both the accused persons were examined under Section 313 Cr.P.C. After considering the relevant materials and examining the witnesses, the Trial Court convicted the petitioner for commission of offence under Section 3 (a) of the RP (UP), Act, 1966 and sentenced him to undergo SI for 6 (six) months. Thereafter, though the accused/ petitioner approached the Appellate Court by filing a petition being Criminal Appeal No. 7(3)/2009 but the learned Appellate Court dismissed the same.

4. Being aggrieved, the present petition is filed.

5. Mr. Saikia, learned counsel for the petitioner, at the outset, submits that he shall not challenge the impugned order of conviction on merit and shall confine his submission for grant benefit of probation.

6. Mr. Saikia, learned counsel for the petitioner argues that the accused/petitioner is entitled for the benefit under Sections 360/361 Cr.P.C. and under the Probation of Offenders Act, 1958 (hereinafter referred to as Act, 1958) which had not been granted