Accused in CC No. 50/2008 of Chief Judicial Magistrate Court, Kozhikode is the revision petitioner herein.
2. The revision petitioner was charge sheeted by the Assistant Sub-Inspector of Police, Railway Protection Force under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, (hereinafter called 'RPUP Act').
2. The case of the prosecution in nutshell was that on 03.02.2008 at 12.15 hours, the petitioner was found in unlawful possession of an yellow polythene bag containing one railway fish plate measuring two length and four wholes having railway mark as T090 M 52 KG R and 03, three numbers elastic rail clips (pandrol clips) and three numbers of empty white polythene bags having approximate value of Rs.500/- and thereby committed the offence punishable under Section 3(a) of RPUP Act.
3. When the accused appeared before the court below after examining the complainant as PW 1 and marking Exts.P1 to P3 and MOs 1 to 4 series, charge under Section 3(a) of RPUP Act was framed and the same was read over and explained to him and he pleaded not guilty. Thereafter, PW 1 was recalled and cross-examined and PWs. 2 and 3 were examined and Ext.P4 was also marked. After closure of prosecution evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He has further stated that he has not committed any offence and he has been falsely implicated in the case. No defence evidence was adduced on his side. After considering the evidence on record, the court below found the revision petitioner guilty under Section 3(a) of RPUP Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for 2 years and set off was allowed for the period of detention already undergone by him. Aggrieved by the same, the revision petitioner filed Crl. A.No. 389/2013 which ended in dismissal. Aggrieved by the same, the present revision petition has been filed.
4. Considering the scope of enquiry, this Court felt that this can be disposed of at the admission stage itself.
5. Heard the learned counsel for the revision petitioner and learned Public Prosecutor appearing for the State.
6. The learned counsel for the revision petitioner submitted that there is nothing on record to show that PW 1 was on duty at that time and also there is nothing to show that it was seized from the possession of the revision petitioner, as no independent witnesses were examined. Further, the evidence of PW 2 is not sufficient to come to the conclusion that the articles are railway property. So the benefit of non-examination of the independent witnesses must be given to the revision petitioner and the court below were not justified in convicting the appellant for the offence alleged.
7. The learned Public Prosecutor submits that there is no illegality committed by the court below and the presumption under the Act has not been rebuted.
8. The case of the prosecution has emerged from the prosecution witnesses was that on 03.02.2008 at 12.15 hours, while PW1, Assistant Sub-Inspector of Police of Railway Protection Force was doing duty, he found the accused coming with the bag in a suspicious circumstance through Platform No.
2 of Koilandi Railway Station. On examination, he found MOs. 1 to 4 were inside the bag and he was satisfied that it was railway property. So he seized the same as per Ext.P1 Mahazar and arrested the accused and recorded Ext.P2 confession statement of the accused in which he had admitted the fact that he had stolen these articles and he prepared Ext.P3 occurrence report and filed before the court below and accused was also produced before the Court. The seizure Mahazar was prepared in the presence of CWs. 2 and 3. PW 2 is the Engineer who examined the articles and given Ext.P2 certificate to show that the articles are railway property.
9. It is true that the independent witnesses to Ext.P1 mahazar were not examined. But it is seen from the judgment that in spite of coercive steps taken, their presence could not be procured. So it is not a case of willful non-examination of the independent witnesses to the seizure mahazar by the prosecution. In spite of coercive steps taken, their presence could not be procured and that was the reason why their examination was dispensed with. Further, though PW 1 was cross-examined at length, nothing was brought out to discredit his evidence recording the fact of arrest of the accused alongwith MOs 1 to 4 from his possession. Further, there is a presumption under Section 3 of the RPUP Act itself that unless the accused prove as to how he came to the possession of railway property, the presumption is that he had committed the theft of the same and he can be found guilty under Section 3(a) of the RPUP Act. The evidence of PW 2 coupled with P2 certificate will go to show the articles seized from the possession of the accused were railway property. No evidence adduced on the side of the revision petitioner that it is not railway property and how he came into possession of the railway property. So under the circumstances, Courts below were perfectly justified in coming to the conclusion that prosecution has proved beyond reasonable doubt that the accused was found to be in unlawful possession of railway property which is punishable under Section 3(a) of RPUP Act and rightly convicted for the said offence. No illegality has been committed by the court below on this aspect.
10. As regards the sentence is concerned, learned counsel for the revision petitioner submitted that he is the first offender and the court below should have applied the provisions of Probation of Offenders Act and he is aged only 23 years. But it may be mentioned here that it is settled law that where a minimum punishment was provided under the Act, then it is not a fit case to invoke the provisions of Probation of Offenders Act in favour of the accused. Further Section 3(a) says that the punishment may extend to 5 years for first offence or with fine or with both and in the absence of special and adequate reasons to be mentioned in the judgment, such punishment should not be less than one year and the fine should not be less than Rs.1,000/-. In this case, even as per the allegations, the value of the articles seized is only Rs.500/-. Further, the petitioner is aged only 23 years at the time when the offence was committed and he is a first offender. So considering these aspects, this Court feels that the sentence of 2 years imposed by the Court below appears to be little harsh and the sentence can be reduced to a minimum of one year as provided under RPUP Act. So the sentence is reduced to one year simple imprisonment in spite of the rigorous imprisonment imposed by the court below.
So the revision petition is allowed in part as follows.:
The order of conviction passed by the court below in CC No.50/2008 of Chief Judicial Magistrate Court, Kozhikode against the revision petitioner under Section 3(a) of RPUP Act is hereby confirmed. But the sentence of 2 years' rigorous imprisonment imposed by the Chief Judicial Magistrate, Kozhikode and confirmed by the Additional Sessions Court in Crl. A. No. 389/2013 is set aside and the same is modified as follows:
The revision petitioner is sentenced to undergo simple imprisonment for one year under Section 3(a) of RPUP Act. The period of detention undergone by him is given set of under Section 428 of Code of Criminal Procedure.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JV JUDGE