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IN THE HIGH COURT OF ORISSA
L. Rath, J.
STATE OF ORISSA - APPELLANT
Versus
B. SUBUDHI AND ANOTHER - RESPONDENT
Govt. Appeal No. 10 of 1982
Decided On : 25-04-1989
RAILWAY PROPERTY (UNLAWFUL POSSESSION) ACT, 1966 - SECTION 3(A) - Possession of Railway Property - Reasonable Suspicion of Theft or Unlawful Obtaining - Burden of Proof on Accused - Confessional Statements - Corroboration - Appreciation of Evidence in Appeal.
Fact of the Case:
The Respondents, a Brakeman and a Guard on a passenger train, were found in possession of stolen Khadi dhoties and plastic knitting wire. The dhoties were part of a consignment booked from Silao railway station and were found to have been pilfered from the luggage van. The Respondents claimed to have purchased the dhoties from a shop in Keonjhar, but the receipts produced by them only accounted for a portion of the seized items.
Finding of the Court:
The court held that the prosecution had established the two ingredients of the seized cloths being the same as those sent in the insured parcel and that regarding such seized cloths a reasonable suspicion could arise of the same having been stolen or unlawfully obtained by the Respondents.
Issues: 1. Whether the prosecution had established the two ingredients of the seized cloths being the same as those sent in the insured parcel and whether regarding such seized cloths a reasonable suspicion could arise of the same having been stolen or unlawfully obtained by the Respondents? 2. Whether the confessional statements made by the Respondents were admissible and reliable? 3. Whether the evidence of the defense witness and the receipts produced by the Respondents were sufficient to rebut the presumption of guilt under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966?
Ratio Decidendi: 1. The court held that the identity of the seized cloths with those sent in the insured parcel was established by the evidence of the consignor, the railway staff, and the seizure memos. The court also found that the circumstances of the case, including the tampering of the parcel seals and the presence of a hole in the wall separating the luggage van and the guard's brake van, gave rise to a reasonable suspicion that the seized cloths were stolen or unlawfully obtained. 2. The court held that the confessional statements made by the Respondents were admissible and reliable, as they were not made to police officers and were corroborated by other evidence. 3. The court held that the evidence of the defense witness and the receipts produced by the Respondents were not sufficient to rebut the presumption of guilt under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, as they did not satisfactorily explain the possession of all the seized items.
Final Decision: The court allowed the appeal, set aside the acquittal of the Respondents, and convicted them under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. The Respondent No. 1 was sentenced to pay a fine of Rs. 1000/-, in default to undergo R.I. for three months, and the Respondent No. 2 was sentenced to pay a fine of Rs. 3,000/-, in default to undergo R.I. for six months.
JUDGMENT :
L. Rath, J. - The Respondents having been acquitted in at prosecution u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the 'Act') the State has preferred this appeal.
2. The case against the Respondents in the trial was that the Respondent No. 1 was the Brakeman and, Respondent No. 2 was the Guard of the Asonsol-Puri Passenger train on 20.9.77, they having taken over such charge from Bhadrak railway station Respondent No. 1 was occupying the Brakevan towards front of the train and the Guard van was at the rear. A parcel van of whom the Guard was also in charge was adjacent to the guard van. The train left Bhadrak railway station at 11.30 p.m. P.W. 6 a Rail way Rakshyak escorting the train saw at Jenapur station the Respondent No. 1 to have gone to the Guard. At Nirgundi station both P.W. 6 and P.W. 7 another Rakshyak found the Respondent No. 1 coming, from the Guard's brakevan with a red bag containing some articles and going towards the front brake van. P.W. 7 accosted the Respondent No. 1 enquiring about the contents of the bag to which the Respondent No. 1 replied of having inside it some cloths and plastic wires given by the Respondent No. 2 to him. P.W. 6 further asked the Respondent No. 1 as to wherefrom the Respondent No. 2 had got the articles and received the reply that the Respondent No. 1 had brought them from the brakevan. It was the statement of P.W. 7 that the Respondent No. 1 had replied of the Guard having got the articles from the luggage-van. The articles in the bag were kept by the Respondent No. 1 in his Line box in the front brake-van. P.W. 6 asked P.W. 7 to keep a watch on him and proceeded towards the rear brakevan. The train reached Cuttack at 1.30 a.m. of 21.9.77 where P.W. 6 reported the matter at the R.P.F. Post, P.W. 1, a Sub-Inspector of R.P.F. receiving information about the pilferage of the cloths from the parcel van went to the station along with P.W. 2, another Sub. Inspector of R.P.F. where they met P.Ws. 6 and 7 and receiving information from them that some Khadi Dhotis had been kept concealed in the guard's brake-van by the guard and that some such dhoties had also been kept concealed by the Respondent No. 1 in his line box, he directed P.Ws. 2 and 6 to search the brakevan and himself along with P.W. 7 proceeded to the front brake van. Since the Respondent No. 1 was busy in loading and unloading the parcels, he could not check the front brake-van and hence when the train started, he proceeded on the same to Khurda Road. There the Respondent No. 1 opened the line box unlocking the same and therein a red bag containing three pieces of Khadi silk dhoties and three bundles of plastic knitting wire were found for which no satisfactory account could be given by the Respondent No. 1 excepting that he received the same from the Respondent No. 2 at Nirgunai railway station. P.W. 1, seized as per Ext. 1, the Khadi silk dhoties and the plastic wires. P.W. 1 thereafter came back to the rear brake van He received the seizure list, Ext. 3 from P.W. 2 who had seized two pieces of Khadi silk dhoties from underneath the sbat of the Guard between the newspaper bundles in the guard's brake-van and he also received Ext. 2 the F.I.R. lodged by P.W. 6, from P.W. 2. He asked the Respondent No. 2 to open the dog box in the brake van, but he pleaded inability saying the key not to be with him. P.W. 3, the Inspector of R.P.F. also reached the spot receiving information of pilfe rage of cloths having taken place and went to the guard's brake-van and asked the Respondent No. 2 about the case to which the Guard kept silent and thereafter informed of he having pilfered at Jenapur Khadi dhoties from the registered insured parcel kept in the luggage van through the dog box and that he had kept the dhoties in a black cloth hand bag inside the dog box and had locked it. Since the key was not provided on being asked, P.W. 3 called the available carriage staff of the station
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