Point of Law: It would be dangerous to base a conviction under S. 3 of Act merely on fact that date of disappearance and date of purchase happened to be same without being satisfied with dates between articles missing and articles purchased by accused. There is still a certain amount of doubt lingering, benefit of which should go to accused.

JUDGMENT :

Prayer: Criminal Revision Petition is filed under Sections 397 and 401 of Code of Criminal Procedure Code, 1973, to set aside the judgment of the Appellate Court in Crl.Appeal No.12 of 2015 on the file of II Additional District and Sessions Court, Arakonam in C.C.No.222 of 2007, Judicial Magistrate, Arakonam, Ranipet, Vellore.

The Revision petitioner is a railway employee was accused for the theft of railway property and tried for offence under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 along with one James (died pending trial and charge got abated against him).

2. On behalf of the complainant, 7 witnesses were examined, 23 Exhibits and 3 material objects were marked.

3. The Trial Court held the accused/revision petitioner guilty. Convicted and sentenced to under 6 months Rigorous Imprisonment and to pay fine of Rs.1,000/ in default to undergo 2 months simple imprisonment.

4. On appeal by the accused/revision petitioner, the Appellate Court confirmed the Trial Court judgment of conviction and sentence. Challenging the correctness and legality of the concurrent judgments of the Courts below, the accused seeks revision.

5. The case of the complainant as spoken through its witnesses is that, on 04/06/2007 at about 11.45 am, while P.W-1, Sri.G.Jayapal, Sub-Inspector/RPF/ACLOCO/Arakkonam along with P.W-3, N.Chittibabu, HC/357/ACLOCO/ Arakkonam and Sri.Sadiq Basha, Constable ACLOCO (not examined) on duty at Gate-C of the LOCO shed saw the accused moving fast out of the Gate covering something. On suspicion, he was intercepted and searched. They found 21 numbers of bronze, 7 numbers of A-9 SA 9 Cab and 1 number of horse air filter which are marked as M.O-1 to M.O-3, wrapped around his waist and in his pant pockets. The accused/petitioner is a Grade-I fitter, working in M-2 Section at ACLOCO, Arrakkonam, had no gate pass to possess M.O.1 to M.O.3, which are the railway properties. The matter was informed to P.W.7, Shri.Ashok Kumar Meena, the Section Officer at ACLOCO and the Superior Officer of the accused. In the presence of P.W-7, recovery mahazar (Ex.P-1) was drawn. The accused gave a confession statement admitting his guilt. Based on his confession, P.W-1, P.W-3 and PW-7 along with the accused went to the LOCO shed and inspected the cupboard from where the property was stolen. In the presence of P.W.4, K.Surendran, Senior Section Officer at LOCO Shed, M-2 Section, Observation mahazar (Ex.P-3) was prepared. The gap and vacant space in the cupboard indicating that M.O-1 to M.O-3 were lifted from that place were noted.

6. P.W-4 has examined the material objects recovered from the accused and given a report marked as Ex.P-15. P.W-5, Raghu Babu, Senior Section Officer at ACLOCO Modification Section has valued the material objects worth Rs.4401/- About the missing of property, he has given the missing report marked as Ex.P-5. The stock list Ex.P-9 and Stock Register (Bronze Filter) Ex.P-10 marked to show that the material objects were given to the Maintenance Section and from maintenance Section, same has been removed and found in possession of the accused.

7. The defence of the accused is that, nothing was recovered from his possession as alleged in the complaint. The M.O-1 to M.O-3 are not proved to be Railway property. The contradiction regarding the time of recovery, belies the case of the complainant. It is not possible to carry materials weighing more than 25 kgs in hip and pant pocket. No independent witness for recovery examined by the complainant though the scene of recovery in C-Gate of ICF where there will be lot of independent witnesses. The evidence of P.W-7 has to be ignored since he is not conversant with Tamil language and cannot be a real witness to documents drawn in Tamil, having signed the document without knowing the content of the document.

8. The Trial Court as well as the Appellate Court overruled the above defence, held the petitioner guilty and sentenced him to undergo 6 months R.I and t