PALOK BASU,J. - (1.) THIS revision has been filed by Chhabinath and Kishori Yadav against their- conviction under Section 3 of the R-P., Act and the sentence of one year's R.I- and a fine of Rs.500 passed by the Judicial Magistrate (N. R.) on 5-8-1989 and upheld by the IV Addl-Sessions Judge, Varanasi on 23-11-1990 in appeal.
(2.) THE short point argued by Sri C-K- Parekh, learned counsel for the appli­cants is that in the instant case the prose­cution evidence falls short of proving that the alleged three bags of fertilisers belonged to the Railways and in this con­nection he has relied upon the statement of P. W. 4 -and P-W.6 who are respectively the alleged owner of the railway consign­ment and 1500 bags of fertilisers and the goods clerk had delivered the said consignment to one Lakshmi Transport Co. No documentary evidence has been placed by the prosecution which will indicate that P-W- 4 Sr. V. V- Sharma had in fact taken the delivery of 1047 bags of fertilizers and not 1500 bags thereof-He was admittedly making a statement in court after about three years of the taking of the delivery/It is impossible to believe that such a fact could be memo­rised and will remain in the mental impres­sion of a witness for so long a period-In the eye of law this required strick proof. If the delivery had already been made to the consignee the property will cease to be railway property. Therefore, it was the bounden duty of the prosecution to prove that the release of the consign­ment to the consignee had been done in a lesser number because of some pil­ferage in the consignment. This required strict proof through the documents from the railways about the release of the lesser quantity of consignment to the consignee. This vital thing being absent, it cannot be said that, in fact, there was eough eileav that the alleged fertilizer bags belonged to the railways .
(3.) THE other points argued are that while Kishori Yadav is said to be going along with Chhabinath, he was not arrested on the spot. The prosecution alleges that Chhabinath had run away- It is argued that he cannot be said to be in possession of the railway property - It was further argued that so far as Chhabinath is con­cerned, he was said to be carrying two bags of fertilizer on his cycle. The cycle was, however, not produced in court, It was further argued that no member of the public had been made witness of recovery and, therefore, it cannot be said that the prosecution case has been;