S.Malik, J. - (1.) THIS appeal arises out of the judgment dated 6-5-1972 of the 2nd Temporary Civil and Sessions Judge, Saharanpur convicting Hari under Section 379 of the Indian Penal Code, and under Section 126 of the Indian Railways Act (hereinafter referred to as the Act) and sentencing him concurrently to one years' rigorous imprisonment and four years' rigorous imprisonment respectively.
(2.) THE evidence on the record was considered and the learned counsel for the parties were heard. The relevant facts proved by the prosecution are that a number of incidents of tampering with the railway track in the yard of Saharanpur Railway Station were reported due to which patrolling of the railway track in the yard was intensified by the Circle Inspector of Railway Protection Force (hereinafter referred to as R.P.F.) at Saharanpur, H.L. Rosario. On the 25th of September, 1966, H.L. Rosario himself along with PW 3 Sub-Inspector Amar Singh, PW 4 Assistant Sub-Inspector, Narain Prasad PW 6 Ram Gopal and one Malik Ram, all of R P.P. Out post Khanalampura, left the out post at about 4.45 PM for patrolling the track towards the west of the out-post. They presently heard the sound of hammering from towards west on the main Morada-bad Saharanpur railway track. They stealthily proceeded in that direction and then saw from a distance of about 50 steps Ram Lal alias Billa and Faqir Chand with the help of hammers and other implements pulling out keys and jaws from the track. Appellant Hari and Gian Singh were carrying bags and were with Ram Lal and Faqir Chand. The keys and jaws removed by Ram Lal and Faqir Chand were being handed over to Hari and Gain Singh who were keeping them in the bags they were carrying. This was happening near telegraph Pole no. 1588/2. On seeing this, Rosario and the others chased the appellant and his companions and challenged them. The appellant and Gain Singh thereupon threw away their bags and took to their heals along with Ram Lal and Faqir Chand who carried away the hammers. Faqir Chand was ultimately caught but the rest escaped. The R. P. F. party collected the bags the appellant and his companion were carrying and the bag which the appellant had thrown down, contained seven keys and three jaws. As the appellant absconded and could not be traced, his case was separated while the other were prosecuted and tried.
(3.) THE appellant pleaded not guilty and denied the prosecution allegations. According to him, he was falsely implicated earlier in another theft case by the G. R. P., Saharanpur, and as he was acquitted in that case, out of spite he has been falsely implicated in this case. The appellant did not examine any witness in his defence.;