The court's decision established the principle that in cases of first-time offences and considering the nature of the offence, the court may modify the sentence by imposing a fine instead of rigorous imprisonment.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. Learned counsel for the petitioners Mr. P.K. Mukhopadhyay, is present along with Mr. Ashish Kumar, Advocate.

2. Learned counsel for the State Ms. Nehala Sharmin, is also present.

3. This petition has been filed against the judgment dated 21st May, 2003 passed in Cr. Appeal No. 32 of 2001, by learned Additional Sessions Judge-XIII, Dhanbad, whereby the judgment passed by the learned trial court has been affirmed.

4. The learned trial court convicted the petitioners vide judgment of conviction and order of sentence dated 27.02.2001, passed by learned Judicial Magistrate (Railways) Dhanbad in R.P. Case No. 132 of 1997, corresponding to Session Trial No. 1621 of 2001, whereby the petitioners have been convicted for offence under Sections 3(a) of Railways Property (Unlawful Possession) Act, 1966 [hereinafter referred to as RP(UP) Act] and sentenced them to undergo rigorous imprisonment for a period of one year.

5. The learned counsel for the petitioners has submitted that the impugned judgments are perverse and are fit to be set aside, in as much as, one of the witnesses could not be cross-examined on account of his death. The learned counsel has further submitted that only one piece of CST-9 plate each from the two petitioners was alleged to have been recovered and considering the fact that they have suffered the criminal case right from 1997 and the present offence is the first offence of the petitioners, some sympathetic view may be taken in this case and sentence be modified. He further submits that fine can also be imposed instead of sending the petitioners to jail again.

6. The learned counsel for the State, on the other hand, has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below which do not call for any interference. The learned counsel has also submitted that as per Section 3 (a) of The Railway Property (Unlawful Possession) Act, the minimum sentence is one year which has been imposed against the petitioners and accordingly, the sentence also does not call for any interference. However, it is not in dispute that the incident is of the year 1997 and the present offence is the first offence of the petitioners.

7. After hearing the learned counsel for the parties this court finds that as per the prosecution case on 30.09.1997 the complainant who happens to be the Sub-Inspector of the Railway Protection Force, Sitarampur got secret information that two unknown miscreants have stolen away railway CST-9 plate and have kept them in a bush by north side of the railway track which is about 25 yard from KM No. 238/30 and same will be removed during evening hours. Consequently, a raiding party was constituted and at 18.30 hrs. an ambush was laid and raiding party found two persons each having one railway CST-9 plate on their head. The Articles were seized and seizure list was prepared in presence of available witnesses. The accused persons disclosed their names as Bhupati Bauri and Raju Bauri, i.e the present petitioners. Upon inquiry, prosecution report was submitted and the learned Magistrate took cognizance of the offence under Section 3(a) of RP (UP) Act.

8. The prosecution examined altogether 5 witnesses. PW-1 is the complainant. He has fully supported the prosecution case and stated that on 30.09.1997 at the time of raid, he was accompanied with A.S.I. Bharat Singh, constable P.K. Rai and Naik A. Murmu and one CST-9 plate each were recovered from the petitioners. He has exhibited seizure list as Exhibit-1. He has stated that the petitioners did not produce any paper to show that they were in lawful possession of the railway property. The written report was marked as Exhibit-2, Seized materials were produced and exhibited as material exhibit-I and I/1. This witness has been fully cross examined. The persons accompanying PW-1 Bharat Singh was examined as PW-2 who also fully supported the prosecution case. He has proved his signature on the