R. M. Sahai, J. - (1.) THE applicant, an employee of Railway Workshop at Gorakhpur was prosecuted u/Sec. 3 of the Railway Property (Unlawful Possession) Act for having been found in possession of two axil brass while coming out of the workshop. He was convicted and sentenced to undergo one year's R.I. Section 3 reads as under :- "Whoever is found or is proved to have been found in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable :- . (a)............ (b)............"
(2.) THE two essential ingredients, therefore, are that the property should be recovered from the possession of the accused and the property must be found to have belonged to railway. On the finding of the two courts below it cannot and has not been disputed that the two axil brass were recovered from the applicant's possession. The only question that remains to be considered is whether the courts below were justified, on the evidence on record, to hold that the property belonged to railway. Section 2 (d) defines railway property. " "railway property" includes any goods, money or valuable security or animal, belonging to, or in the charge of, or possession of, a railway administration.'' The only evidence to establish that the axil brass belonged to railway consisted of M. L. Chakrawarti (PW 1), Superintendent, Foundry shop of the Railway Workshop, Gorakhpur. It was stated by him that such brass pieces were used only at Gorakhpur Workshop. From this the Magistrate inferred that the axil brass belonged to railway. The appellate court, however, found, 'in the present case it is true that on the statement of M. L. Chakrawarti (P.W. I) it could not be said with reasonable certainty that the axil brass Ex. 1 and Ex. 2 were the exclusive property of the railways.' But the conviction was maintained as, 'In the present case the appellant did not claim the incrimination articles to be his personal property. Any property found in possession of workshop staff inside the workshop premises could, in the circumstances, be safely presumed, as was presumed by the learned Magistrate, to be the exclusive property of the workshop. This circumstance coupled with the recovery of the incriminating articles concealed beneath dirty pieces of cloth in the bag held by the appellant in his hands when coming out of the workshop gate after finishing the day's duty, and his forcing his way out on being checked by the Rakshak on duty, and the further fact that such brass axles were being used by the railways in the said workshop, left little doubt that the articles Exs. 1 and 2 were the properties of the railway administration and the possession of the appellant of the same at the time of its recovery was unlawful punishable under Section 3 of the Railway Property (Unlawful Possession) Act. The conviction of the appellant is thus justified and must be maintained.' Once evidence of Sri Chakrawarty is excluded there is no direct evidence on the record consisting of either stock register or any document showing that the property was in charge of a railway administration. The only circumstantial evidence pointed out by the courts below is recovery of the axil brass from the possession of the applicant. The two ingredients of possession and ownership of railway are independent of each other. To hold a person guilty the prosecution is required to establish both. The appellate court committed an error in presuming ownership of railways from the recovery of axil brass from applicant's possession.
(3.) THE learned. State counsel has vehemently argued that as brass axil was recovered from applicant's possession a presumption arose that it was stolen good. He has placed reliance on illustration (a) to Section 114 of the Indian Evidence Act which read as under :- "that a man who is in possession of stolen goods soon, after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for possession." The presumption operates if a person is found in possession of stolen goods and not otherwise. The emphasis is not on possession but on the nature of goods. The presumption of the person being a thief arises not because he is found in possession of any good but because the goods are stolen goods. In case the prosecution fails to establish that the goods were stolen the presumption becomes inoperative. The illustration does not appear to be helpful as unless the axil brass was established to be railway property the applicant could not be presumed (?) merely because they did not belong to him or he failed to explain the source of his possession. The latter part of Section 3 of the Railway Act itself incorporates a rule presumption contained in illustration (a). But this comes into play only when the first part is proved namely possession of the applicant of property which belonged to railway.;