Under the Railway Protection Act, unlawful possession of railway property warrants conviction, regardless of the death of one accused.

O R D E R

This revision petition is preferred by the accused against the judgment in Criminal Appeal No.244 of 2001 of the 5th Additional Sessions Judge, Ernakulam. Revision petitioners are accused nos.2 to 4 in C.C. No.484 of 1994 of the Additional Chief Judicial Magistrate, Ernakulam. The charge against the accused is that on 10.03.1994, the Assistant Sub Inspector, Railway Police Force, Ernakulam found accused nos.1 to 3 unloading 24 numbers of grills from the railway lorry no.KEB-1140 near Thykkoodam bridge on the western side of the National Highway, Vyttila. On interrogation, they informed that the 4th accused directed them to unload the grills at his residence. Since the property belongs to the railway, the accused unauthorisedly removed it and thereby A1 to A4 committed the offence punishable under Sec.3(a) of the Railway Protection (Unlawful Possession) Act 1966. In the circumstance, Sub Inspector, Railway Protection Force filed a case in the trial court. The 1st accused died during trial. His charge was abated.

2. During trial, prosecution examined PW1 to PW13 and marked Exts.P1 to P15. MO1 was admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. The learned Magistrate convicted accused nos.2 to 4 to pay a fine of Rs.5,000/- (Rupees five thousand only) each in default, simple imprisonment for three months each. Being aggrieved by that they preferred this revision petition.

2. After filing this revision petition, the 2nd accused died. The death certificate issued from the Registrar of Births and Deaths, Karukutty Grama Panchayath has been marked as Ext.C1. The date of death is recorded as 15.10.2009 and his legal heirs were not impleaded after his death.

3. According to Sec.394 of the Code of Criminal Procedure , every appeal shall be abated after the death of the appellant. But there is no abatement in revision.

Hence, I heard both sides.

4. The prosecution case was erected upon the basis of information given by the Assistant Sub Inspector, Railway Police Force, Ernakulam. On the date of incident, he noticed A1 to A3 removing iron grills from the lorry and on interrogation, the accused informed that they removed it as per the direction of A4. The stolen articles removed were marked as MO1 series in the trial court. PW2 conducted investigation and recorded the statement of the witness. A certificate from Senior Divisional Engineer was obtained for ascertaining that MO1 series were belonging to the railway. Ext.P4 is the certificate to that effect. As per Ext.P4, no permission was granted to remove MO1 from the railway premises. Therefore, the direction issued by PW4 to accused nos.1 to 3 is unlawful. Ext.P5 is another certificate to show that MO1 series belonged to the railway, worth Rs.8,000/-. The articles were recovered and returned to railway department. They also obtained Exts.P6, P7 and P8 to prove the authenticity of the version stated by PW1 and PW3. No circumstances were brought out by the defence counsel to discredit the above version.

5. Analysing the facts and circumstances, I find no illegality or irregularity committed by the courts below. Therefore, the conviction passed by the trial court is only to be confirmed. The learned counsel appearing for the revision petitioners submitted that the 3rd accused is retiring from the service on 31.07.2016 and seeks some leniency in sentence. Considering the nature of offence and the circumstances under which it was committed, the sentence imposed by the courts below is modified and the revision petitioners are sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) each under Sec.3 (a) of the Railway Protection (Unauthorised Possession) Act, 1966, in default simple imprisonment for three months.

This revision petition is disposed of as above.