Murlidhar, J. - (1.) THE applicant Darya Singh has been convicted under section 3 of the Railway Property (Unlawful Possession) Act and sentenced to 18 months RI.
(2.) THE prosecution case was that on 19-11-1974 seven cotton bales had been booked at Bareilly Junction for Bisharatganj and those bales were on the platfrom. Further that the applicant who is a shunting porter at Bareilly Junction was caught at about 5 A.M. in the goods yard with one of those bales by a party of R.P.F. that was on patrol duty. THE gunny wrapped bale is said to have contained the railway mark which is allegedly put on booked packages. After preparing a recovery memo the applicant was brought to the R.P.F. outpost and a first information report was allegedly lodged there at 6.15 A.M. It was conceded by the R.P.F. officials that the applicant was supposed to be on duty from 12 midnight to 8 A.M. as shunting porter on the day of occurrence. THE applicant's case was that he was falsely implicated after being called from the office of the Assistant Yard Master through an R.P.F. Rakshak at about 6.30 A.M. due to his enmity with one Rohtas Singh, Rakshak. About recovery the prosecution examined A.S.I. Hari Chandra and A.S.I. Ram Kumar Sharma. THE applicant in his defence examined Head Train Clerk Rana Pratap to prove that he was on duty and Badri Dutt and Parvin Datt, Assistant Yard Foreman and Shunting Jamadar respectively, to support his case that he was on duty with the Jamadar at the office room of the Assistant Yard Master when R.P.F. constable had called him away on the excuse that he had some private business with him. THEse witnesses say that subsequently when the applicant did not return they enquired about him for R.P.F and were told that he had been locked up. THE courts below have accepted the prosecution version and disbelieved the defence. The only point pressed in revision is that the defence evidence has been brushed aside by the courts below on unconvincing grounds. The trial court laid great stress on non-production of certain registers but this is absolutely immaterial when even the prosecution witnesses admit that the applicant was found to have been on duty. The crucial point is the weight to be attached to the testimony of Assistant Yard Foreman Badri Dutt and the shunting Jamadar Parvin Dutt. The trial court reasoning that even if their statements be accepted as true that would not show the applicant to have b?en constantly present in the office is wholly untenable. The point is not whether the testimony proves his presence in the office at every moment, but that this testimony is wholly inconsistent with the prosecution case and, therefore, if this has any substance the prosecution case about recovery at 5 A. M. must fail. Again, the trial court said that this testimony was belied by the diary entries at the R. P. F. outpost according to which the applicant had been arrested at 5 A. M. and the FIR was lodged at 6.15 A.M. This is again perverse reasoning for it is precisely to challenge the authenticity of these inquiries that this evidence has been adduced. The worth of the evidence can, therefore, not be assessed after accepting the entries as truthful. Similarly, the appellate court has referred to the cross-examination directed to the nature of the register and recorded its suspicion which, as already noted, is irrelevant. As regards the evidence of Badri Dutt and Pravin Dutt the only point it has noted is that it is nod shown that they submitted any report to their superior officer about the circumstances in which the applicant was apprehended. I do not think this fact alone can be of much importance. Moreover, Badri Dutt has specifically deposed during cross-examination that he had on learning about the arrest of the applicant immediately informed the Yard Master and the Station Master. It is, therefore, clear that the courts below have failed to take into account the evidence of DWs. 2 and 3 about the applicant having been called away by an R. P. F. constable near about 6.30 A. M. in its proper perspective and have disbelieved it on untenable grounds. If this evidence is taken into consideration the least that can be said is that the prosecution story becomes doubtful and the conviction becomes unsustainable. The revision, therefore, succeeds and is allowed. The conviction and sentence of the applicant are set aside and he is acquitted. He is on bail and need not surrender. The bail bonds are discharged. Revision allowed.;