The conviction for receiving stolen railway property cannot stand without clear evidence of theft and expert identification, highlighting the necessity for prosecution to meet its burden of proof.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant revision is filed by the petitioner in terms of Section 401 Cr.P.C. read with Section 397 Cr.P.C. assailing the impugned judgment passed in connection with Criminal Appeal No.8 of 2005 by the learned Adhoc Additional District and Sessions Judge (FTC), Gunupur dated 28^th June, 2006 for having confirmed the order of conviction and sentence directed against him by learned J.M.F.C., Bissam Cuttack in G.R. Case No.110 of 1995 (T.R. No.1057 of 1995) on the grounds inter alia that the same is liable to be interfered with for not being in accordance with law and in conformity with the materials on record.

2. The petitioner and other accused persons were chargesheeted under Sections 379 and 411 read with 34 IPC and Section 3 of Railway Property (Unlawful Possession) Act, 1966 (in short, ‘the Act’) and all of them faced trial and ultimately, the learned J.M.F.C., Bissam Cuttack acquitted others but found him guilty for the offences punishable under Sections 411 read with 34 and of the Act and imposed a sentence to undergo R.I. for a period of one year and to pay a fine of Rs.1000/- with a default sentence of R.I. of 2 months. No separate sentence was imposed for the offence under Section 411 and the direction as above was only for the offence punishable under the Act. The learned J.M.F.C., Bissam Cuttack, however, found the petitioner not guilty under Section 379 read with Section 34 like the other accused persons.

3. The prosecution case in brief is that during the night of 18^th and 19^th June, 1995 at about 2.00 AM, the OIC of Chandili P.S., as per the direction of S.P., Rayagada, being accompanied with PS staff and S.I. of Police, Therubali Outpost and others proceeded to the a village to conduct raid in respect of illegal transportation of iron sleepers from nearby railway track running between Visakhapatnam and Therubali and on reaching there, found fresh tyre impression of a truck on the western side of the State Highway near a milestone and by following the same, as it led them towards a bushy jungle area, reached the spot and found a truck bearing Regd. No.AHJ 8389 loaded with railway iron sleepers and some persons belonging to labour class were being engaged for loading of it, but they managed to flee seeing the police party, whereas, the petitioner and other accused persons present were found involved in supervising such loading work. Due to theft of iron sleepers belonging to railway and its possession by the accused persons, all of them were chargesheeted for the alleged offences and as earlier stated, except the petitioner, others were acquitted of the charges levelled. The learned J.M.F.C., Bissam Cuttack discussed the evidence on the charges framed and received from the side of the prosecution as defence adduced no evidence, either oral or documentary. The learned court below having been approached by the petitioner, disposed of the appeal and dismissed it, confirming the order of conviction and sentence with a conclusion that he was present at the spot and was duly identified by the prosecution witnesses examined. The findings arrived at by the learned J.M.F.C., Bissam Cuttack have been entirely confirmed in appeal upholding the order of conviction and sentence, the petitioner filed the revision.

4. Heard Mr. Nanda, learned counsel for the petitioner and Ms. Dash, learned ASC for the State.

5. Mr. Nanda, learned counsel for the petitioner would submit that there are many discrepancies in the evidence of the prosecution but it has not been taken judicial notice of the learned courts below. It is contended that the impugned judgments as at Annexures-1 & 2 are against the facts and law and hence, liable to be set aside. The c