- (1.) VINOD Prasad, J. Aggrieved by the judgment of acquittal dated 21-5-1985 passed by Judicial Magistrate-I (NR) Railway, Bareilly in Case No. 888 of 1981, State v. Satyendra Kumar Singh and Ors. , under Section 3 Railway Property Unlawful Possession Act (R. P. U. P. Act ). State has preferred this appeal under Section 378 Cr. P. C. alongwith leave to appeal. Leave was granted by this Court and the appeal was admitted on 4-5- 1987. The appeal was expedited on 24-2-1989. The record of this appeal indicated that the trial Court record was ordered to be summoned on 4-2-1991. The office report dated 7-1-1992 indicated that the report which was received from Incharge Record Room, Bareilly indicated that trial Court record was weeded out on 6-9-1990. Hence, this Court ordered for reconstruction of the record on 25-8-1994. The order sheet of this appeal further reveals that the Incharge District Judge, Bareilly, on 13-2-2006, intimated this Court that reconstruction of the record is not possible except two certified copies of entries Nos. 7 and 47 dated 9-1-1981 of the general diary of GRP, Bareilly Junction which was sent by the Incharge District Judge, Bareilly alongwith his report dated 13- 2-2006. The record further reveals that the Additional Chief Judicial Magistrate, (NR ), Bareilly also made a report on 31-1- 2006 that reconstruction of the record is not possible, Now this appeal is listed for hearing.
(2.) THE facts of this case are that on 10-1-1981 S. P. Bhatt, Sub- Inspector accompanied by Chandra Shekhur Sharma and Ram Asrey Singh constables whereon checking duty in Chandausi Railway yard when they found that near line No. 11 from a stationed wagon a person was carrying a bag on his head and a second man was keeping another bag from the wagon on the head of a third person. When the aforesaid GRP personnels proceeded towards the wagon all the aforesaid persons started running. THEy were chased by giving calls as thieves. Constable Mukhtar Ali reached in the spot and all the three persons were apprehended alongwith the bags on the road near Railway Hospital at 12. 50 a. m. who disclosed their names as Pramod Kumar, Girish Kumar and Satyendra Kumar Singh. THE bags were that of Urea manure. THE wagon in question was numbered as ER 58819. Seizure memo was prepared on the spot, signature of witnesses were obtained, recovered manure were sealed, impression of seal etc. were prepared and a case was registered at RPF post Chandausi. Investigation proceeded and culminated into a complaint under Section 3 R. P. U. P. Act against the accused persons who were summoned by the Railway Magistrate, Bareilly. "the accused respondents denied the charge and took the defence of false implication. In the trial, complainant prosecution examined Asrey Singh, Head Constable P. W. 1, S. P. Bhatt, S. I. P. W. 2, Brijesh Singh Good Clerk P. W. 3, Manga Ram Singh guard P. W. 4, Nitin Kumar, Assistant Goods Clerk P. W. 5, Chandra Shekhar Sharma Head Constable P. W. 6 and Shamshad Hussain, Sub-Inspector as P. W. 7. Ram Asrey Singh Head Constable P. W. 1, S. P. Bhatt, Sub-Inspector P. W. 2 and Chandra Shekhar Head Constable P. W. 6 supported the prosecution version. Rajesh Singh, Goods Clerk P. W. 3 evidenced that wagon ER 58819 was loaded with 469 bags of Urea but on physical verification only 460 of bags of Urea were found and resultantly there was a shortage of 9 bags Urea. Manga Ram Singh P. W. 4 testified that he was Train Clerk posted at Chandausi. The aforesaid wagon ER 59819 had come to Chandausi which was booked for Moradabad. Both the doors of the said wagon were sealed which was checked by him. On 19-1-1981, the date of occurrence, the northern door of the said wagon was resealed as the seal of the aforesaid door was found broken. P. W. 5 testified that he was posted as Assistant Clerk in Bombay and the aforesaid wagon was booked for Moradabad by Food Corporation of India containing Urea. Shamshad Hussain P. W. 7 is the Investigating Officer who had proved various steps of investigation, filing of complaint exhibit Ka-12, site plan exhibit Ka-11, statement of accused exhibit Ka-8 and statement of accused Pramod Kumar exhibit Ka-10. Trial Court after going through the evidence came to the conclusion that in fact the accused were not apprehended by the GRP constables and they had not seen them taking out the bags of Urea from the wagon in question and the accused were apprehended on the metalled road out side Railway yard. The Trial Court also came to the conclusion that none of the GRP constable had seen the accused near the wagon nor they had witnessed commissioning of theft. Trial Court also referred to the statement of P. W. 1 wherein he has stated that he did not know which accused was carrying bag, which was loading the bag and which of the accused was taking out the bag from inside the wagon. Trial Court also referred to the prosecution witness to point out that in respect of arrest of the accused also the evidence of prosecution witnesses are contradictory in nature. The Trial Court also came to the conclusion that the statement of the accused persons were recorded while they were in custody of the Investigating Officer and hence the confessional statements of the accused were hit by Section 25 of the Evidence Act and cannot be read in the evidence nor it can be treated to be a confession at all. Trial Court also recorded a finding that prosecution has not been able to examine the consignee regarding the number of bag loaded in the wagon and Nitin P. W. 5 had acknowledged that nobody had made any claim in respect of missing of Urea bags from the Railways. Trial Magistrate was of the opinion that had the bags of Urea were stolen the owner of goods would have certainly laid the claim against the Railways. The Trial Court also recorded a finding that no person from Food Corporation of India (FCI) was examined to substantiate the complaint case and hence it recorded an order of acquittal of accused respondents.
(3.) I have heard Sri Danish Iqbal Faridi, learned brief holder in support of this appeal and Sri Madan Singh, learned Counsel for the three accused respondents. In the absence of the original record, Sri Danish Iqbal Faridi, learned brief holder could not criticized the judgment of acquittal of accused respondents.;