Railway has to prove the property belonged to Railway.

This appeal has been preferred by the State against the order of acquittal passed by the learned VII Metropolitan Magistrate, G.T., Madras in C.C. No. 585 of 1977 acquitting the respondent-accused for an offence under section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966.

2. The case of the prosecution in a nutshell is as follows: P.W. 2 is the Sub-Inspector of R.P.F., Royapuram. On 14th December, 1976 at 4.50 a.m., when he was on a confidential watch in between Washermanpet Railway station and M.C.C. level crossing gate, he saw the accused carrying a cloth bundle concealed in his left arm-pit and going from east to west. P.W. 2 stopped him on suspicion near the bridge and questioned him about the bundle. The accused was not able to give an explanation of his possession of the bundle. Hence, P.W. 2 checked it in the presence of witnesses and found it contained one railway dynamo belt with marks “Oriental Bombay 78-1975”. M.O. 1 marked in this case is the belt. It was seized tinder cover of a mahazar, Exhibit P-2. As no independent witnesses were available, P. W. 2 could not get Exhibit P-2 attested by anybody. He took the accused to R.P.F. post along with M.O. 1 and registered a case in Crime No. 65 of 1976, under section 3 (a) Railway Property (Unlawful Possession) Act, 1966. A statement was recorded from the accused which is marked as Exhibit P-3. The case property was subsequently produced in Court.

3. P.W. 1 is the Electrical chargeman, Royapuram, who deposed that on 20th December, 1976, at R.P.F. post, Royapuram, he examined M.O. 1, dynamo belt and found the railway marks “Oriental 1975 Bombay” in it. There was a railway emblem on it also. According to him the belts like M.O. 1 are used in the dynamo for train lighting purposes. M.O. 1 is in serviceable condition and is not available in open market. It belongs to Indian Railways and he has issued the certificate, Exhibit P-1 in this case.

4. On the incriminating circumstances appearing against the accused, when questioned the accused denied the offence and examined two witnesses on his behalf.

5. D.W. 1 is a relation of the accused. On 14th December, 1976, at 7.00 a.m., he was informed that R.P.F. officials had taken the accused as he had crossed the railway line. He went to R.P.F. post at Royapuram and enquired about it. He learnt that the accused had crossed the railway line while on his way to the hospital. He got a chit of the hospital which the accused was having in his possession at the time. Next day, the R.P.F. officials filed a different case against the accused and produced him into Court. He got the accused released on bail.

6. The accused examined himself as D.W. 2. According to him, ho was born in Burma. On 14th December, 1976 he went to Stanley Hospital for treatment of Asthma. He filed Exhibit D-1 series as O.P. tickets. When he was going to the Stanley Hospital he saw the level crossing gate closed. So, he entered inside the gate and crossed the line. The police officials caught him and filed this case against him. He deposed that he only crossed the line and he was not in possession of any dynamo belt.

7. Learned Public Prosecutor appearing for the State has contended that on the evidence of P.W. 2, S.I., alone, the conviction could be based. According to him the reasons given by the lower Court in not accepting the evidence of P.W. 2 are not correct. He submitted that Exhibit P-3 even without the attestation of any independent witness can be acted upon in view of the evidence of P.W. 2. There is no need for oath being administered to the accused before Exhibit P-2 was recorded. He submitted as no independent witnesses were available the mahazar Exhibit P-2 was not attested and the absence of mahazar witness is not a circumstance to throw doubt on the veracity of P. W. 2’s evidence. He further submitted that P.W. 1 has proved that M.O. 1 seized from the accused belongs to the railway administration. In support of his contentions, h