- (1.) P. K. Jain, J. Heard Sri A. R. B. Kher, learned counsel for the revisionist and learned AGA for the State.
(2.) REVISIONIST Randhir Singh was convicted by the Railway Magistrate, Jhansi under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and was sentenced to undergo RI for 3 months and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo S. I. for a further period of one month. The appeal preferred by him also failed and the judgment and order of the trial Court was confirmed by the appellate Court. It is contended by the learned counsel for the revisionist that it is not proved by the evidence on record that the property in question was Railway property. Hence the revisionist could not have been convicted. The second contention is that the revisionist was admittedly on duty and his presence in the railway yard was authorised and he had been falsely implicated due to difference between him and the railway staff. Lastly, it is contended that considering the facts and circumstances a lenient view may be taken in the matter of award of sentence. Learned AGA contends that the trial Court below taken a lenient view and the revisionist being a person employed for protecting the railway property, no question of taking lenient view in the matter of award of sentence arises. As regards other contentions, learned counsel for the State contends that the evidence on record establishes beyond doubt the factum that it was railway property and that the revisionist was found in unlawful possession thereof. As regards first contention, the learned counsel for the revisionist drew my attention to the statement of P W 7 who is an expert and had been examined by the prosecution to prove that the sheet of aluminium recovered from the possession of the revisionist was railway property. It is the case of the prosecution that the piece of the aluminium sheet is used in railway coaches and which was removed from Coach CR No. 5203 which was found parked in the railway yard of Jhansi. After the revisionist was apprehended he admitted that he was taking the sheet for his personal use and that it was lying at some distance from his duty beat. He had picked it up from there and was taking it for personal use. He had taken PW1 and the witnesses to the railway coach from where the sheet was removed and on inspection PW 1 had found that the same was removed from Coach No. CR. 5203. Memo (Ext. Ka 3) was prepared by the PW 1 and had been proved by him. During the enquiry the Enquiry Officer PW 8 also inspected the said coach and found that the sheet was taken out from the said coach. A perusal of Ext. Ka-3 shows that on the sheet being fitted in coach No. CR. 5203 at the place from where the sheet was taken out, it fitted well and completely adjusted to the space from where it was taken out from the said coach. The submission of the learned counsel for the revisionist that PW 7 had admitted during the cross-examination that such type of sheets are also used in "buses and are available in the open market, is of no help. The challenge of the revisionist with regard to the factum of the sheet in question being railway property has not been established. 'railway property' has been defined under Section 2 (d) of the Railway Property' (Unlawful Possession) Act, 1966 and it include any goods, money or valuable security or animal belonging to, or in charge or possession of a railway administration. ' This means that it is not necessary that in order to prove that the property to be railway property it should be established that the property should have special markings or should be of specific specification, the property of which specification is not possessed or used by any other person or such property is not available in the market. What the prosecution has to prove is that the property belonged to the railway or was in charge or possession of the railway administration. This has been done in the prosecution case. As a matter of fact when the sheet in question did not have any special specification or markings on it showing to be the railway property, there was no need of examining the expert viz. , PW 7 Bahadur Singh. In view of the evidence described above, it cannot be successfully contended by the learned counsel for the revisionist that the prosecution has filed to establish that the sheet in question was railway property. There is no merit in the first submission of the learned counsel for the revisionist.
(3.) THERE is no doubt that it is the prosecution own case that the revisionist was on duty. His presence in the yard, therefore, cannot be said to be unauthorised. Merely because the revisionist was on duty, and his presence was not unauthorised, it can be said that he cannot be held guilty for being unlawful possession of railway property. It is contended that the Courts below have committed an error in accepting the solitary testimony of PW 1. The submission is misconceived as PW 4 Jagmohan and PW 6 Hakim Singh have corroborated the testimony of PW 1. As to the question of sentence, Section 3 of sub-clause (a) of the Railway Property (Unlawful Possession) Act, 1966 provides that the sentence of imprisonment to five years, and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, it shall not be less than one year and such fine shall not be less than one thousand rupees. The trial Court considering that the revisionist was the member of the railway protection force, he was not a previous convict took lenient view in the matter of award of sentence and sentenced to revisionist to undergo RI for 3 months and fine of Rs. 1,000/ -. The duty of the revisionist was to protect the railway property and if the protector himself commits act of pilferage, then this cannot be a sufficient and adequate reason to take a lenient view in the matter of award of sentence. In any case I do not think it to be a proper case for giving notice for enhancement of sentence since it is now already 12 years since the offence was committed. However, no further leniency in the matter of award of sentence is justified.;