K. B. Asthana, C. J. - (1.) RAM Autar and Kamta Prasad, Railway Servants, have come in revision before this Court against their conviction and sentence for an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966.
(2.) THE prosecution case briefly stated, against the applicants, was that at about 11 O'clock in the night of 13-6-1968 they were apprehended carrying an engine lubricator in a gunny bag in the Railway yard of Faizabad station on the Northern Railway by three Rakshaks of the Railway Protection Force and one Vijai Bahadur Singh, another Railway Employee. It is further said that, how ever, the applicants threw away the lubricator concealed in the gunny bag and ran away. Vijai Bahadur Singh claims to have indentified them in electric light of the Railway yard. THE three Rakshaks and Vijai Bahadur Singh then took the lubricator concealed in the gunny bag to the Government Railway Police of the Station and an entry was made in the General Diary naming the applicants as the persons from whose possession the lubricator was recovered. When the applicants came to know that a report had been made against them the) were advised to appear before a Magistrate who bailed them out on 19-6-1968. On 21-6-1968 the Officer-in-Charge of the Government Railway Police sent the lubricator for inspection by Sri Narpat Singh, Foreman at the Loco Shed in Lucknow. On receiving the report from him that the lubricator recovered was Railway Property a com plaint was filed against the applicants before the competent Magistrate on 23-6-1968. At the trial before the learned Magistrate the three Rakshaks, namely Ram Sagar Chhedi Singh and Raj Karan Pandey, Vijai Bahadur Singh and Nar pat Singh and one or two formal witne sses were examined in support of the prosecution case. On behalf of the applicants evidence was led that Vijai Bahadur Singh was on inimical terms with them and it was he who had impli cated them falsely in collusion with the Rakshaks of the Railway Protection Force for wrecking vengeance. THE learned Magistrate relied on the prose cution evidence, convicted the applicants and sentenced them to pay a fine of Rs. 1000/- each and in default to six months rigorous imprisonment. An appeal by the applicants to the learned Sessions Judge against their conviction and sen tence remained abortive. Hence, this revision before this Court. On behalf of the applicants a writ petition was filed, unusual in a criminal case. Possibly the applicants were advised to invoke the jurisdiction of this court under Article 226 of the Constitution. Be that as it may, nothing turns on the form of the application. At the preliminary hearing this court treated the case as a criminal revision. A large number of grounds have been raised in support of the revision. I do not consider it necessary to exa mine the tenability of all the grounds raised as the applicants would be enti tled to relief if the question of law posed that the lubricator alleged to have been recovered from their posses sion was not Railway Property as con templated by Section 3 of the Railway Property (Unlawful Possession) Act, 1966 was answered in their favour. However, before f proceed to examine the above ground on its merit I may point out here that a perusal of the order sheet, as it appears of the learned Magistrate, leaves an impression on my mind that the learned Magistrate did not fairly deal with the applicants who were accused before him. He had repeatedly rejected their prayer for summoning of the official records in order to substantiate their defence on merits and facts. Then again documen tary evidence was not allowed to be ad duced to establish enmity between the applicants and prosecution witness Vijai Bahadur Singh, in my judgment Vijai Bahadur Singh was the most important prosecution witness as it was on his identification that the applicants were accused. Even the learned Sessions Judge in his appellate judgment conce des that Vijai Bahadur Singh and the applicants were on inimical terms. Vijai Bahadur's evidence, therefore, should have been received with the greatest caution more so when he was not able to satisfactorily explain his presence in the Railway yard on the 1 fateful night at 11 O'clock on 13-6-1961, Since the two courts of fact have believed this witness and enmity necessarily does not disqualify a wit ness, the conviction based on the tes timony of Vijai Bahadur Singh cannot be said to be legally vitiated on that ground. But I refer to Vijai Bahadur Singh because in refusing to summon some documents as called for the accus ed have been prejudiced as further evi dence on record may have presuaded the court of fact to discard Vijai Baha dur Singh as an unreliable witness.
(3.) COMING to the question of law the only evidence on behalf of the prosecution to establish that the lubricator was Railway Property is that of Narpat Singh, Foreman. He stated after seeing the lubricator, which was a material exhibit, that it was Railway Property and on it there was a stamp mark TRS-B & A Railway' engraved. This is all the evidence on record. Agreeing with the view of a learned Single Judge of this court in the case of Umar Khan v. State. (1) I have no hesitation in hol ding that the material furnished in the evidence of Narpat Singh is too in sufficient for the prosecution to dis charge the burden on it. Section 3 as worded first casts a burden on the prosecution that it must prove that the property recovered from the posses sion of a person is Railway Property, it must also lead evidence which may be even circumstantial from which objectively the court can deduce or conclude that the Railway Property so recovered could be reasonably suspected to have been stolen or unlawfully obtained. Here in the instant case I find that neither of the ingredients as indicated by me above has been established by the prosecution. The requirement of the Section is that (1) it should be Railway Property which is found or is proved to have been in possession or proved to have been in possession of a person, and (2) such property should be reasonably suspected of having been stolen or unlawfully obtained. Once these two ingredients are established by the prosecution the burden shifts on the person so found in possession to show that such property came in possession lawfully. Merely the property found having a mark engraved on it 'IRS B & A Railway' in my judgment, would, not be sufficient for discharging the onus on the pro secution. Something more has to be established by the prosecution, 'Rail way Property is defined as 'any goods belonging to, or in the charge or pos session o; a Railway administration' 'Railway administration' as defined under the Indian Railways Act means the Manager of the Railway and inclu des the Government in the case of Rail way administered by the Government. It was, therefore to be proved before a conviction could be recorded under Section 3 of the Railway Property (Unlawful Possession Act, 1966 that the property recovered belonged to or was in the charge or possession of the Manager of a Railway or the Govern ment. Here in, the instant case on record there is no proof that the lubrica tor in question belonged to or was in the charge or possession of the Manager of any Railway or of the Government. Narpat Singh in his evidence stated that 'B & A Railway' meant Bengal and Assam Railway. It was also elicited from him that Bengal and Assam Railway had long been wound up. The marking therefore, on the lubricator would leave the matter vague and uncertain. Nothing has been brought on record to establish that on the winding up of the Bengal and Assam Railway administration the lubricator in question was in the posses sion of or belonged to or was in the charge of the Manager of any Railway or of the Government. The prosecution even did not lead any evidence to show that such lubricator was of any engine in the Loco shed at Faizabad. There is absolutely no evidence that any lubri cator was lost from the Loco Workshop at Faizabad from any engine therein or for the matter of that from any engine belonging to any other Railway admi nistration. Though this witness stated that lubricators are used only in Rail way engines but he did not say that it is only the Railway Workshop that manufactures such lubricators. In these circumstances I am compelled to hold that the prosecution failed to discharge the onus on it. Apart from the fact that the lubricator in question has not been proved to be Railway Property in the eye of law there is no circumstantial evidence on record from which reason ably it could be inferred that it was stolen or obtained unlawfully. For the reasons given above I allow the revision and setting aside the conviction and sentence passed by the two courts below acquit the applicants. Fine, if paid, shall be refunded.;