S. Sardar Zackria Hussain, J.@mdashThis appeal is filed by the complainant/State, viz., Inspector, Railway Protection Force, Avadi, against the acquittal of the accused, as per the judgment dated 23.10.1997 and made in C.C. No. 1716 of 1987 on the file of the Judicial Magistrate No. I, Poonamallee, in respect of the offence u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966.
2. The facts that led to the filing of this appeal are as follows:
The Criminal Case in C.C. No. 1716 of 1987 was filed against the respondents/accused u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as "the Act"). In the complaint it is stated that on 06.6.1987 at 4.30 a.m., while the Inspector, Railway Protection Force, Avadi, was patrolling with his party near Avadi Car shed, the first accused was found in unlawful possession of one grey colour Rexine cloth, M.O.2, with railway marks covered in a dungry cloth, M.O.1, and he was arrested since he was not having any authority for the possession of the said cloth and the case was registered in Crime No. 3 of 1987 u/s 3(a) of the Act. The properties M.Os.1 and 2 were seized under Mahazar Ex.P.1. The confession statement of the first accused(admissible portion is Ex.P.2) was recorded in the presence of P.W.8-Murthy and one Ramu-P.W.9 and on the basis of such confession, the house of the second accused was searched where one ceiling fan with regulator (Ranjan make), M.O.3, with private marks and railway marks as ELC/TRL was found in unlawful possession of the second accused; the same was seized under Search List Ex.P.4; the second accused was arrested and his confession statement(admissible portion is Ex.P.6) was recorded. On the basis of the confession of the second accused, the house of the third accused was subjected to search from where one wooden main switch with mark ELC/O/TRL, M.O.4, was seized under Search List Ex.P.5; the third accused was also arrested on the same day and his confession statement(admissible portion is Ex.P-6) was recorded under Ex.P.7. The statements of the witnesses P.W.2 Murthy and P.W.9 Ramu were recorded under Ex.P.8 and Ex.P.9 respectively. All the three accused were brought to the Station with properties seized; and they were sent for remand and after completion of investigation, final report was filed.
3. The Judicial Magistrate No. I, Poonamallee, framed charge u/s 3(a) of the Act, against the accused.
4. The complainant in proving the case against the accused, examined P.Ws.1 to 8 and marked Exs.P-1 to P-19. M.Os.1 to 4 were also marked on the side of the complainant. No witness was examined on the side of the accused. The trial Court, mainly relying on the evidence of P.W.5 - R.Sivalingam, Assistant Shop Superintendent of New Car Shed at Avadi, who has stated in his evidence that he cannot say from where M.O.2 Rexine cloth was stolen and that since there is railway mark in M.O.2, it cannot be said that the said property is the railway property, as stated in the Certificate, Ex.P.13, issued by him and that there is no other document to show that M.O.2 Rexine cloth is the railway property and also considering the evidence that he cannot say that as to what is written in Hindi in the Railway Seal contained in M.O.2, and further taking into consideration of the evidence of Duraibabu - P.W.7 that he has no records to show that the second accused has been residing in his house as a tenant and since V.Chandran - P.W.8, Revenue Officer, has stated in his evidence that he does not know about the issuance of Ex.P.16 Certificate, ultimately, recorded finding that the charge u/s 3(a) of the Act, has not been proved beyond reasonable doubt and in that view, acquitted the accused from the charges levelled against them. Challenging the said judgment of acquittal, the complainant/State has preferred this appeal.
5. When the accused were questioned u/s 313(1)(b) of the Code of Criminal Procedure, on the basis of the incriminating materials made available against them by the State, they denied each and every circumstance put up against them as false and contrary to facts.
6. Eventhough notice has been issued to the respondents, the respondents were not appeared either in person or through their counsel. Hence, this Court appointed Thiru N.Duraisamy, advocate as Amicus Curiea to conduct the case on behalf of the respondents.
7. Heard Mr.A.N.Thambidurai, learned Government Advocate (Criminal Side) appearing for the appellant/complainant/State and the Mr.N.Duraisamy, advocate, appointed as Amicus Curiea to conduct the case on behalf of the respondents.
8. Learned Government Advocate (Criminal Side) submitted that the trial Court has not considered the evidence let in on the side of the appellant/complainant in respect of the offence alleged against the accused. In this regard, learned Government Advocate argued that when P.W.1, V.Anandaraj, Inspector attached to Railway Protection Force, Avadi, was patrolling on 06.6.1987 with his party, at 4.30 a.m., the first accused was found in unlawful possession of one grey colour Rexine cloth M.O.2 with railway marks covered in a dungry cloth M.O.1. and since he failed to explain the possession of the said property, on reasonable suspicion that it was stolen and that the said property came into unlawful possession of the first accused, they were seized by him under mahazar Ex.P.1. He then submitted that based on the confession statement of the first accused(admissible portion is Ex.P.2), which was recorded in the presence of P.W.8-Murthy and one Ramu-P.W.9, the house of the second accused was searched from where one ceiling fan with regulator (Ranjan make) - M.O.3, with private marks and railway marks as ELC/TRL, which was found in unlawful possession of the second accused, was seized under Search List Ex.P.4; that he was also arrested; that on the basis of his confession statement, Ex.P.6, the house of the third accused was subjected to search from where one wooden main switch with mark ELC/O/TRL, M.O.4, was seized under Search List Ex.P.5; and that he was also arrested on the same day, whose confession statement was recorded (admissible portion is Ex.P.7). He further submitted that P.W.5, R.Sivalingam, Assistant Shop Superintendent of New Car Shed, Avadi, has issued Certificate Ex.P.13 and he has also given statement in Ex.P.14 as per which the Rexine cloth is the Railway property and this aspect has not been properly considered by the trial Court. He then submitted that the Ceiling Fan with regulator M.O.3 was found missing from the Railway Quarters of the first accused and P.W.3, P.Victor, Assistant Electrical Foreman, Thiruvallur, has given statement Ex.P.11 to the effect that the properties M.O.3 and M.O.4 were found missing in the house at No. 10/B of Railway Quarters, Avadi, which was allotted to the first accused and occupied by him, during his periodical inspection on 21.02.1987 and he has also issued Certificate Ex.P.10 to that effect.
9. Learned Government Advocate also submitted that during the pendency of the appeal, the first respondent/accused died and the Death Certificate issued by the Avadi Municipality has also been filed.
10. Mr.N.Duraisamy, Amicus Curiea appearing for the respondents 2 and 3/accused 2 and 3 vehemently contended that since on the basis of the confession statement(admissible portion is Ex.P.2) of the first accused, the house of the second accused was searched from where it is alleged that M.O.3 ceiling fan with regulator was seized as per the Search List Ex.P.4; that on the basis of confession statement(admissible portion is Ex.P-6) of the second accused, the house of the third accused was searched and as per Search List Ex.P.5, M.O.4 Switch Box was seized; and that the complainant has miserably failed in proving the death of the first accused. He further submitted that the confession statement of the co-accused is inadmissible in evidence and that the search made in the house of the accused 2 and 3 on basis of the confession statement of the accused 1 and 2 respectively itself being irregular, the argument advanced by the learned Government Advocate (Criminal Side) that the accused 2 and 3 were found in unlawful possession of M.O.3 and M.O.4 respectively cannot be correct and inasmuch as the trial Court, considering the fact that it has not been proved by the appellant/complainant that M.Os.1 to 4 are the Railway properties, has rightly acquitted all the three accused and no ground is made out to reverse the judgment of acquittal.
11. Mr.N.Duraisamy, Amicus Curiea appearing for the respondents 2 and 3 relied on the judgment of this Court in State by Public Prosecutor v. Veerapillai 1986 CRI.L.J.1132 wherein it has been held:
"In an appeal against acquittal, even if two views are possible, the High Court should be slow in reversing the judgment."
12. Mr.N.Duraisamy, Amicus Curiea also relied on the judgment in State by Public Prosecutor v. Jeevarathinam 1972 L.W. (CRI) 79in which at page 80, this Court held thus:
"In order to establish an offence u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966, the prosecution has got to prove (1) that the accused has been in possession of the railway property (2) that the property seized from the accused is railway property and (3) that the said railway property is reasonably suspected of having been stolen or unlawfully obtained. The three essential ingredients constitute the gist of the offence against an accused. We have got to consider whether the properties themselves have been proved in the instant case as railway properties within the meaning of Section 3 of the Railway Property (Unlawful Possession) Act of 1966."
13. The Amicus Curiea, in support of his submission, further relied on the judgment of the Supreme Court in Balakrishnan A. Devidayal v. State of Maharashtr 1981 SCC (CRI) 62 wherein Their Lordships have held at page 64 as under:
"Applying the above test to the present case, it is clear that an officer of the RPF conducting an enquiry u/s 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code.
On several material aspects the inquiry under the 1966 Act differs from investigation under the Criminal Procedure Code.
From the comparative study of the relevant provisions of the 1966 Act and the Code, it is abundantly clear that an officer of the RPF making an inquiry u/s 8(1) of the 1966 Act does not possess several important attributes of an officer in charge of a police station conducting an investigation under Chapter XIV of the Code. The character of the "inquiry" is different from that of an "investigation" under the Code. The official status and powers of an officer of the Force in the matter of inquiry under the 1966 Act differ in material aspects from those of a police officer conducting an investigation under the Code. Therefore, the Inspector of the RPF could not be deemed to be a "police officer" within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry u/s 8(1) of the 1966 Act, cannot be excluded from evidence under the said section."
14. As per the case of the appellant / complainant, the first accused was found in unlawful possession of one grey colour Rexine cloth, M.O.2, with railway marks covered in a dungry cloth, M.O.1, which was seized by P.W.1, Inspector, attached to Railway Protection Force, Avadi, under mahazar Ex.P.1. Further, it is the case of the appellant that on the basis of the confession statement Ex.P.2 of the first accused, the house of the second accused was searched from where one ceiling fan with regulator (Ranjan make) M.O.3, with private marks and railway marks as ELC/TRL, was seized under search list Ex.P.4 since it was found in unlawful possession of the second accused and that on the basis of the confession statement(admissible portion is Ex.P.6) of the second accused, the house of the third accused was searched from where one wooden main switch with mark ELC/O/TRL, M.O.4, was seized under search list Ex.P.5 since the same was found in unlawful possession of the third accused and his confession statement (admissible portion is Ex.P.7) was also recorded. Therefore, firstly, it is to be seen as to whether the appellant has established that the properties seized from the houses of the accused A1 to A3 are the Railway properties attracting offence u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966.
15. Inasmuch as it is reported that the first accused Venkatasamy died on 13.02.2003 during the pendency of this appeal, the appeal against the first accused/respondent is dismissed as abated.
16. Therefore, it remains as to whether M.O.3 Ceiling fan with regulator (Ranjan make), which is alleged to have been recovered under search list Ex.P.4 from the second accused and M.O.4 wooden main switch, alleged to have been seized from the house of the third accused under search list Ex.P.5, have been proved as Railway properties and that they were in unlawful possession of the accused 2 and 3, which were suspected to have been stolen or unlawfully obtained.
17. As regards M.O.3 and M.O.4, P.W.3 Victor, Assistant Electrical Foreman, Thiruvallur Railway station, has stated in his evidence that during his periodical inspection on 21.02.1987 in the railway quarters bearing Door No. 10(B), which was allotted to the first accused Venkatasamy, he found the fan, light, regulator, meter board and KWA Motor missing and he reported the same to his office. It is his further evidence that on 11.6.1987, he was called by the Railway Protection Force and accordingly, he went to the Avadi RPF Station, where he found the ceiling fan, regulator and three wings, viz., M.O.3 and M.O.4 and he certified under Ex.P.10 that the said M.O.3 and M.O.4 are the properties, which have been stolen from the Railway quarters at 10(B) allotted to the first accused. P.W.3 has also stated in his cross-examination that Ex.P.12 is the missing report sent by him to his higher officials. It is seen from Ex.P.12 report that the same is dated 25.02.1987. In the report, it is stated that during his inspection on 21.02.1987 in the Railway Quarters 10(B), which was occupied by the first accused B.R.Venkatasamy, Fitter/TLR/MS, he found eleven items were missing in which the first item is AC Ceiling Fan 1400 MM Sweep, W/Black and the said fan, according to him, is M.O.3, which was shown to him on 11.6.1987 in the RPF Station, whereas in the search list Ex.P.4, the said items are mentioned as AC Ceiling Fan "RANJAN" make with letters in Red point ''RANJAN'' and marks TYPE AC, HZ 50, SW 1200MM and one Fan regulator with letters ''RANJAN'' in red colour. In Ex.P.12, item No. 3 is mentioned as ''Fan Regulator 1 No. '' Therefore, it is clear that what have been seized from the house of the second accused, viz., M.O.3 Fan with regulator, are not the properties of the Railway, which were alleged to have been found missing in the house of the first accused at 10(B) during the inspection of P.W.3. Further, as per the search list Ex.P.5, it is seen that one wooden main switch board measuring about 18" X 12" titled with 5A/KMH Meter bearing letter "CALI BRATED one Nov 84" in white paint on the top with details as to the Meter indicating 000118 units made in Germany and further letters 36/985/1007 was found missing whereas in the Report Ex.P.12, the second item is mentioned as ''TW Board 18'' X 12'' 1 No''. Further, in Ex.P.12, the details of the said switch board have not been furnished, which, according to the appellant, was seized from the house of the third accused. Therefore, it is clear that what was alleged to have been seized from the house of the third accused cannot be said to be the TW Board, which was found to be missing when P.W.3 inspected the quarters 10(B), allotted to the first accused, on 21.02.1987.
18. It is also seen that the report Ex.P.12 does not contain the seal of the date and office to which it was addressed throwing doubt as to whether the same was actually sent on 25.02.1987 by P.W.3. It is also to be noted that the appellant/complainant failed to establish that the properties M.O.3 and M.O.4, which were alleged to have been seized under mahazars Ex.P.4 and Ex.P.5 from the houses of the accused 2 and 3 respectively, are the Railway properties and that they are the properties, which were found to be missing at the quarters 10(B), allotted and occupied by the first accused, when P.W.3 inspected on 21.02.1987.
19. The trial Court, considering all these aspects, has rightly found that the appellant/complainant has not proved the case that the properties M.O.3 and M.O.4, which alleged to have been found in possession of the accused 2 and 3 respectively, recovered under search lists Ex.P.4 and Ex.P.5 as that of Railway properties and accordingly, acquitted both the accused 2 and 3. In that view, there is no merit in the appeal filed by the complainant against the acquittal of accused 2 and 3 and the same is to fail.
20. This Court appreciate the assistance rendered by Thiru N.Duraisamy, the Amicus Curiea appointed in this appeal, who argued after preparing the case well.
21. In the result, the appeal filed against the first accused is dismissed as abated and the appeal filed against accused 2 and 3, in view of the discussions made above, is dismissed and the judgment dated 23.10.1997 made in C.C. No. 1716 of 1987 on the file of the Judicial Magistrate No. I, Poonamallee, is confirmed. Rs. 2,000/- is fixed as the fee of Thiru N.Duraisamy, Amicus Curiea appointed by this Court, which is payable to him by the Tamil Nadu Legal Aid Services Authority, High Court, Madras.
