Amar Saran, J. - (1.) -These two connected criminal revisions have been preferred against the judgment passed in two connected Criminal Appeal Nos. 194 of 1982 and 204 of 1982 by Ist Additional Sessions Judge, Bareilly on 31.10.1984 which concern the same incident. By the impugned judgment the learned Sessions Judge has dismissed both the appeals from the judgment of the learned Judicial Magistrate (Northern Railway), Bareilly, dated 23.6.1982, whereby the accused have been convicted and sentenced under Section 3 of Railway Property (Unlawful Possession) Act, 1966 and each of them were sentenced to one year's R.I. Criminal Revision No. 2366 of 1984 has been preferred by three revisionists, Devendra Singh, Shyam Lal alias Shyama and Surendra Singh. Out of these revisionists Shyam Lal alias Shyama had died and a report dated 3.2.2003 to this effect has been received from the Chief Judicial Magistrate, Bareilly. Accordingly, the revision preferred by Shyam Lal alias Shyama abates. The other Criminal Revision No. 2562 of 1984 has been preferred by Hira Lal.
(2.) HEARD Sri P. N. Misra, learned senior counsel for the revisionists and learned A.G.A. As the record in this case has not been received Sri Misra states that he is not insisting that the record be obtained before the disposal of the revision and he further points out that he would be satisfied if these revisions are decided on the point of sentence and also it would not be treated as an enhancement of the punishment, if the sentence of imprisonment awarded to the accused persons is reduced to the period already undergone and some fine is awarded to the revisionists. Before considering this prayer of the learned senior counsel it is necessary to briefly examine the facts of this case. The prosecution story was that on 26.2.1978 at about six in the evening to the west of the railway track at Kilometer No. 4/10 near village Maheshpur the revisionists were found in possession of stolen dalchana in four gunny bags. These bags were alleged to have been stolen from box wagon No. C.R. 66992 in the night intervening 22/23.2.1978 from Down Lucknow Goods Special, which had been unauthorisedly stopped at the outer signal of Ram Ganga Railway Station for about eight minutes. The revisionist Devendra Singh was arrested at the spot with a gunny bag containing dalchana while the remaining three revisionists are said to have made good their escape and they could not be arrested in spite of chase by the R.P.F. personnel, who had arrived at the spot on information furnished by an informer. Although I am not deciding this revision on merits as I am handicapped due to the absence of the record in this case. But some striking features are apparent in this case. Firstly, the four gunny bags containing dalchana were recovered in an arhar field which was about one kilometre away from the railway track. Secondly, the gunny bags did not contain any marking showing that they were railway property. Although the definition of railway property has been expanded under Section 2 (d) of the aforesaid Act, to include any goods, money or valuable security or animal belonging to, or in the charge or possession of, a railway administration. But before an accused can be successfully prosecuted under the Act, it is important that the accused has knowledge of the fact that the property in question was railway property. If the gunny bags had markings indicating that they were Railway consignments, then it could have been presumed that the accused must have notice that the bags in question were railway property. But as thing stands, the bags bore the labels of the F.C.I. Also as the distance from railway track was one Km. and the time when the accused are said to have been seen with the bags was four days after the alleged theft from the train, it cannot be said with any degree of certainty that the accused were in conscious possession of railway property to attract the provisions of Section 3 of the Railway Property (Unlawful Possession) Act, 1966. It may be noted that only revisionist Devendra Singh is said to have been apprehended at the spot by the R.P.F. personnel. So far as other accused persons are concerned they had escaped from the spot and it is not intelligible how the accused who are not well known to the R.P.F. personnel could have been recognised or identified by them if they ran away as soon as the R.P.F. personnel arrived there. Another surprising feature was that if the accused had committed theft of the railway property would they be present at the spot to be arrested by the R.P.F. personnel who had come for search there, 4 days after the theft on the train. All these issues leave a string of unanswered questions in my mind. Apart from this I find that there is no indication on the record to show that the accused persons were previous convicts. They must have been in jail for some time. The incident in question took place on 26.2.1978 and therefore, more than 25 years have elapsed since the incident. So much so that one of the accused has died in the meanwhile.
(3.) IN this view of the matter, I think that there are special and adequate reasons to reduce the sentence awarded to the surviving revisionists to the period already undergone by them subject to their paying a fine of Rs. 500 each and in default of payment of fine the revisionists shall undergo further rigorous imprisonment for three months. The revisionists are granted three months time to pay the fine. They are on bail. Their bail bonds will be cancelled and sureties discharged after payment of fine as aforesaid. Both the revisions are partly allowed.;