Constructive possession of stolen railway property suffices for conviction under the Railway Property (Unlawful Possession) Act, and confessions recorded by RPF officers are admissible as evidence.

JUDGMENT :

Anubha Rawat Choudhary, J.

1. Heard learned counsel for the parties.

2. This criminal revision has been filed against the Judgment dated 17.09.2016 passed by the learned 2nd Additional Sessions Judge, Latehar in Criminal Appeal No.30/2012 whereby and whereunder the criminal appeal has been dismissed. The Judgment of conviction and the order of sentence dated 06.09.2012 passed by the learned Railway Judicial Magistrate, Daltonganj in R.P. Case No.19/2003 / Tr. No.19/2012 has been affirmed.

3. The learned Trial Court has convicted the petitioner under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 [HEREINAFTER REFERRED TO AS R.P.(U.P.) ACT] and has sentenced him to undergo Rigorous Imprisonment for two years with fine of Rs.2,000/-and in default of payment of fine, to undergo R.I. for one year under Section 3(b) of R.P.(U.P.) Act and the period already undergone in jail custody was directed to be set off.

Submissions on behalf of the petitioner

4. The learned counsel for the petitioner submitted that the basic ingredients for the offence under Section 3 of the R.P. (U.P.) Act has not been satisfied against the petitioner. Neither the allegation of theft has been proved, nor possession has been proved.

5. He also submitted that the coal was found scattered near the railway line at open place and therefore, the property cannot be said to be Railway property.

6. The learned counsel submitted that though the charge was framed under Section 3 of R.P. (U.P.) Act, but no specific charge was framed under Section 3(b) of R.P (U.P.) Act. In absence of specific charge having been framed under Section 3(b) of R.P. (U.P.) Act, the petitioner could not have been convicted under Section 3(b) of R.P. (U.P.) Act. He placed Section 3(a) and 3(b) of the R.P. (U.P.) Act and submitted that the basic ingredients for the offence under both the sub-sections are same and the only difference is that in case of previous conviction, the offence is punishable under Section 3(b) of R.P. (U.P.) Act. Two previous convictions have been mentioned in the judgment passed by the learned Trial Court in connection with R.P. Case No. 9 of 2000 and R.P. Case No. 77 of 1994. He submitted that no specific charge having been framed under section 3(b) of R.P. (U.P.) Act, the conviction of the petitioner under Section 3(b) of R.P. (U.P.) Act cannot be sustained in the eyes of law.

7. The learned counsel further submitted that the petitioner has been convicted only the basis of confessional statement and nothing more.

8. He submitted that the persons whose confessional statements were recorded namely, Majid @ Babloo, Md. Hasib Miya and Md. Sanaullah, their cases were split up vide order dated 05.07.2008 due to their prolonged non-appearance.

9. The trial court’s judgment also records that the petitioner was arrested on 29.02.2003 from his house and he had confessed his guilt and his confessional statement was recorded.

Findings of this Court

10. The prosecution case is based on the F.I. Sheet and Complaint submitted by Inspector-in-charge, RPF Post Patratu (PW-2) alleging that on 08.05.2003 at about 07:00 A.M., the Complainant received information from the on-duty Station Master that UP Goods Train Nos. 7443 and 7096 loaded with coal were forcibly stopped by miscreants at K.M. No. 183/27 and a large quantity of coal was unloaded from the wagon. When the Informant alongwith other police personnel rushed to the place of occurrence, they saw 13 to 14 persons engaged in carrying stolen coal in cane baskets and stacking the same at a distance of 20 yards south from UP Railway track and two persons were supervising the stacking of the coal who were identified as Mofil Khan and Md. Hasib Mian. After chase, Md. Sanaullah @ Kalal and Md. Mazid @ Bablu were arrested and 30 Kg. raw coal from each were recovered. On search of the vicinity, three tons of raw coal in scattered condition, 3 cane baskets each containing 30 Kg. raw coal, 5 empty cane baskets and 2 tons of ra