Decided on September 27,1973

P. Venkat Rao Appellant
Union Of India (Uoi) Through Officer -In -Charge, Railway Protection Force Respondents


G.K.Misra, J. - (1.) THE Petitioner has been convicted under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (Act No. XXIX of 1966) (hereinafter to be referred to as the Act) and sentenced to rigorous imprisonment for one year. Prosecution case is that two bags containing some pieces of snake skins and mosquito curtains were recovered from the Petitioner while he was getting down from the brakes van in train no, 89 from Khurda Road to Palasa on 18 -8 -1970. The Petitioner admitted the possession of these articles but took the plea that one Malyabanta Jena who was tried as a co -accused with him and has been acquitted requested him to travel in the brakes van up to Balugaon from Kalupada Ghat and gave him the said bags containing the seized articles to be kept in his house saying that he (Malyabanta) would collect the same on his way back. Among other witnesses prosecution examined p.ws. 1 and 2, the Rakshyakas (members of the Railway Protection Force), who apprehended the Petitioner and seized the articles from him. An appeal was filed before the Sessions Judge, Puri, who acquitted Malyabanta but the conviction of the Petitioner was upheld by him.
(2.) MR . Murty very fairly conceded that the properties seized from the Petitioner were railway properties and the Petitioner was in possession thereof. He, however, contends that the Petitioner is entitled to an acquittal inasmuch as he had no guilty intention and he is an innocent victim who fell into the trap of Malyabanta. Section 3(a) of the Act, so far as relevant, runs thus: 3. 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, be punishable: (a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees. The essential elements to be established by the prosecution is that the property recovered was railway property and the same was found in the possession of the accused. If these two elements are established, the onus shifts to the accused to prove that the railway property came into his possession lawfully. In this case the accused has given no evidence; that the two bags containing the incriminating articles were handed over to him by, Malyabanta. The only material in his favour is his own statement under Section 342, Criminal Procedure. Code. This statement is not evidence. The accused has not proved any facts to establish that the railway property came into his possession lawfully though he took such a plea in his statement under Section 342, Code of Criminal Procedure. The accused having failed to discharge the onus, conclusion is irresistible that he committed the offence under Section 3(a) of the Act.
(3.) THE sentence imposed is the minimum of one year. It does not call for any interference.;

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