JUDGMENT
Madhavendra Saran, J.
1. This Government Appeal is against the order and Judgment dated 9.12.1992 passed by Smt. Santoshi Tiga, Judicial Magistrate, 1st class, Railway, Samastipur in Samastipur R.P.F case No. 10/1985 corresponding to Jr. No. 194/1992 by which learned Magistrate acquitted the respondents from the charges under Section 3 of Railway Property (Unlawful Possession) Act (in short as Act).
2. The prosecution case, in short, is that on 31.1.1985 Birendra Kumar Singh, A.S.I along with police party proceeded to search the house of respondent Jagdish Sharma and when they reached near the house of Jagdish Sharma they found some persons engaged in concealing the properties here and there outside the house on the information given by Sitaram Sharma, brother of Jagdish Sharma about the arrest of son of Jagdish Sharma. It is further said that seeing the raiding party the persons so engaged fled away. House of respondent, Jagdish Sharma was searched and some properties alleged to be railway properties were recovered. Thereafter house of Sitaram Sharma was also searched and from his house also railway properties were recovered. Seizure list was prepared over which signature of Jagdish Sharma was obtained and accordingly a case was registered against them. It further appears that R.P.F personnel after investigation submitted charge sheet against respondent, Jagdish Sharma and his son, Kamala Kant Sharma. Cognizance was taken and both the respondents were put on trial in which the prosecution examined in all seven witnesses, some papers were also exhibited and the learned Magistrate by order and Judgment dated 9.12.1992 acquitted the respondents. Against the said acquittal the State has preferred the present appeal before this court.
3. It has been argued that the learned Magistrate misconstrued the evidence on record and the order and Judgment of acquittal is based on surmises and conjectures. The learned Magistrate has failed to consider that the stolen railway properties were recovered from the house of respondent Jagdish Sharma at his instance. He further argued that the learned Magistrate has failed to appreciate that there was no enmity between the witnesses and respondents and their evidence is consistent one. Learned A.P.P also pointed out that stolen properties were recovered from the conscious possession of respondent Jagdish Sharma.
4. It appears from the record of the trial court that, in all seven witnesses were examined on behalf of prosecution and they are PW1, Birendra Kumar Singh, PW2, Md. Ijhar Khan, PW3, Kedar Prasad Singh, PW4, Vijendra Nath Goswami, PW5, Om Prakash, PW6, Ramji Sharma and PW7, Radha Kant Mishra.
5. It appears from Fard Khana Talashi (seizure list) Ext.-1 that out of 7 items seized, item No. 1 is railway dynamo belt about 7 to 8 cubic in length bearing marking of Bhartiya Rail Sampatti, 1983, item No. 4 is two tapes bearing marking of N.E. Railway and Purvottar Railway both in hindi and english and item No. 7 is rail piece of about 1 feet of length. It further appears that items No. 1 and 4 have been recovered from a wooden Almirah and item No. 7 was recovered from a plaintain grove situated in front of door of the house. The other recovered items are screws in 7 packets, T.L. bulb of 110-V and nuts and bolts of different sizes in huge quantity.
6. Under Section 2 of the Act whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully shall be punishable. As defined in Section 2(d) of the Act Railway Property’ includes any goods, money or valuable security or animal belonging to or in the charge of possession of, a railway administration. Thus essential requirement of Section 3 of the Act are that – (i) the property in question should be railway be property, (ii) it should reasonably suspected of having been stolen or unlawfully obtained and (iii) it should be found or proved that the accused was in possession of that property. In the above background let us now see the evidence.
7. PW1 on 31.1.85 was posted at RPF post at Samastipur. On that day he along with PWs 2, 6 and others searched the house of accused Jagdish Sharma and recovered dynamo belt bearing monogram of Bhartiya Rail Sampatti. Two tapes bearing railway marking of N.E. Railway, bulb, nut bolts and rail of one feet in length. Accordingly, seizure list Ext.-1 was prepared and the raiding party returned back to the RPF post along with accused Jagdish Sharma. PW3 on the day of raid was posted as Inspector, RPF at Smastipur. He has also stated that on 31.1.1985 the house of respondent Jagdish Sharma was searched leading to recovery of above mentioned articles. Similar is the evidence of PWs 2 and 6. In the evidence of all these witnesses it has come that the property recovered was the railway property.
8. PW4 has been examined as an expert. He examined tapes and other seized items and expressed opinion that they all were railway properties. He also expressed opinion that all these items are ‘ used in railways. His report is Ext. 3.
9. PW5 is also examined as an expert. He examined the seized piece of rail line bearing marking of BNWR and expressed opinion that the same was railway property. His report is Ext.-4.
10. Admittedly there was railway marking over dynamo belt, two tapes and rail line. The question whether on the basis of the above evidence is it reasonable to hold that dynamo belt, two tapes and rail line were railway properties. In this connection it has been contended on behalf of the State that the articles seized were only available in the railway and the two experts PWs 4 and 5 have duly certified the same to be railway properties which left no doubt that articles seized specially dynamo belt, two tapes and rail line are railway properties.
11. Now the question is whether the seized items have been recovered from the possession of respondent Jagdish Sharma. In this connection learned Counsel appearing on behalf of respondents placed reliance on the Judgment of the trial court and contended that it has not been established that the recovery was made from the conscious possession of respondent Jagdish Sharma.
12. It is the prosecution case that at the time of search and seizure respondent Jagdish Sharma was present in the house. The seizure list, that is, Fard Khaha Talashi bears the signature of Jagdish Sharma. It has come in the evidence of PW1 para 6, PW 2 para 6 and 7 and PW3 para 1 that the search was made in the presence of Jagdish Sharma. PW6 in para 1 has said that at the instance of Jagdish Sharma the search was made. In face of the above oral evidence it is difficult to accept that the recovery was not made from the possession of Jagdish Sharma. The recovery of all these railway properties indicate that respondent Jagdish Sharma is either a thief or a receiver of stolen property. The prosecution on the basis of evidence on record has been able to show that the recovered property was in exclusive and conscious possession of respondent Jagdish Sharma. The evidence on record connects respondent Jagdish Sharma with the recovered articles.
13. It was next contended on behalf of respondents that at the time of seizure independent witnesses were available and in their presence the alleged seizure was made but they were not examined during trial by the prosecution and so adverse inference against prosecution case may be drawn. It is true that at the time of seizure two public witnesses were present and they signed the seizure list Ext.-1 but they were not examined during trial by the prosecution. The testimony of PWs 1, 2, 3 and 6 given on oath cannot be discarded merely because they are official witnesses. Section 100(4) of the Code of Criminal Procedure is not mandatory. The mere fact that all the search witnesses have not been examined does not render the search illegal. It is not the requirement of law that all the search witnesses should be called and examined.
14. It was then contended on behalf of respondents that PWs 4 and 5 who examined the recovered articles are not expert and they are employees of the railway. He also contended that they have no training of experts. Admittedly, over some of the recovered articles there was railway marking. PW4 is admitted to have received training from the railway. PW4 in para 10 has admitted that on the basis of monogram he expressed opinion that the property is of railway. It is true that there is nothing in the evidence of these two witnesses to show that they had acquired any special skill or knowledge of an expert to give such opinion in the matter but it has to be kept in mind that the presence of railway marking over the above three items is sufficient to show that they were property of the railways.
15. Learned Counsel then referred to some minor contradictions and omissions appearing in the evidence of prosecution witnesses to submit that their evidence is not reliable. I have examined those contradictions and in my opinion they are not sufficient to discard the evidence of prosecution witnesses.
16. So far as other respondent Kamala Kant Sharma is concerned, there is no evidence to show that at the time of recovery he was present in the house. Admittedly, he is son of respondent Jagdish Sharma. Simply because some stolen articles were recovered from the house of accused Jagdish Sharma is not sufficient to establish involvement of respondent Kamala Kant Sharma. Learned APP appearing on behalf of the State fairly conceded that against respondent Kamala Kant Sharma there is no evidence on record.
17. On the basis of above discussion, only respondent Jagdish Sharma is found guilty under Section 3 of R.P. (U.P) Act. So far as other respondent is concerned, there is no evidence against him. So, respondent Kamala Kant Sharma is found not guilty of any offence and the present appeal against his is dismissed.
18. Heard on the question of sentence.
19. Learned Counsel submitted that respondent may be released on probation of good conduct.
20. It appears from the record that the present occurrence relates to the year 1985. A period of more than 22 years have already elapsed. It also appears from the record of trial court that there is no previous conviction against respondent Jagdish Sharma. It further appears that in the year 1992 he was 62 years old. Probation cannot be claimed as of right and this is not a fit case where any benefit under the provisions of Probation of Offenders Act can be given to the respondent. Since last 22 years respondent is facing this prosecution. He is now more that 75 years old.
21. In these circumstances, respondent Jagdish Sharma is convicted under Section 3 R.P. (U.P.) Act and sentenced to pay a fine of Rs. 1,000/- (one thousand) and in default of payment of fine to undergo R.I. for two months.
21. With the above direction, this appeal is allowed in part.