Accused must prove lawful possession of railway property to avoid conviction under the Railway Property Act.

1. Questioning the legal acceptability and sustainability of the impugned judgment dated 16.3.2004 passed by Third Additional Sessions Judge, Raipur in Criminal Appeal No. 88/2003 affirming the judgment of conviction and order of sentence awarded by Special Railway Magistrate, Raipur in Criminal Case No. 1613/91 on 7.3.2003, instant revision has been preferred by two applicants namely Kailash Singh (A - 1) & Dushyant Soni (A - 2).

2. The core facts required to be noticed for consideration of this revision are as under: -
(2.1) On 21.01.1991, Mr. B. N. Upadhyay along with his staff conducted a raid in the Dabrapara area and caught hold of accused / applicant (A - 1)in the railway area. Upon memorandum (Ext. P5) of accused Kailash, some railway property, i.e., 11 signal - hook, 3 pieces signal - spring and other railway articles, were seized from him vide Ext. P6. At the instance of accused / applicant (A - 1), some railway property, i.e., 80 kgs. signal - junction, 10 kgs. copper - ring, 2 E.P.Ds. and other railway articles, were seized from the shop of accused / applicant (A - 2) vide Ext. P7. Accused / applicant (A - 2) informed the police that he has purchased the said railway articles from Rajaram, Rajesh and Bhukhan Lal Soni. Thereafter, the said property was got examined by the subject expert, who opined that said property to be the railway property and after due investigation, charge - sheet for the offence under S.3 (a) of the Railway Property (unlawful possession) Act, 1966 (for short the Act, 1966) was filed in the jurisdictional criminal Court.
(2.2) Present applicants and one Bhukhan Lal pleaded no guilty to the charge and entered into defence and denied the occurrence.
(2.3) So as to hold the accused / applicants guilty, the prosecution has examined 8 witnesses and exhibited 13 documents in support of its case whereas the accused / applicants neither examined any witness nor brought any document on record in their defence.

3. Upon appreciation of oral and documentary evidence; the Special Railway Magistrate found that the present accused / applicants namely Kailash Singh & Dushyant Soni guilty of commission of offence under S.3(a) of the Act, 1966 and sentenced them to undergo rigorous imprisonment for six months each whereas acquitted accused Bhukhan Lal Soni of the abovesaid offence, which in appeal accepted by the appellate Court maintaining the conviction for offence under S.3(a) of the Act, 1966 as well as the sentence awarded, against which, the instant revision has been filed.

4. Mr. A. N. Bhakta, learned counsel appearing for the applicants would submit that the prosecution has absolutely failed to bring home the charges under S.3(a) of the Act, 1966 and consequently conviction recorded and sentence awarded against the applicants deserves to be set aside.

5. None has appeared on behalf of the non - applicant / Union of India.

6. Mr. Prasun Bhaduri, learned Government Advocate for the State, while assisting the Court, would submit that stolen railway properties were found in possession of the present applicants and they have failed to prove the lawful possession of the said property; and the said properties are not available in the open market; and therefore, they have rightly been convicted for the offence under S.3(a)of the Act, 1966.

7. I have heard learned counsel appearing for the parties and perused the order impugned with utmost circumspection.

8. The question that falls for consideration is whether the railway property was found in possession of the present applicants and they have proved their lawfu