- (1.) RAJESHWAR Singh, J. These two appeals arise out of the same judgment; be they are being disposed of by a common judgment.
(2.) FOUR persons were prosecuted under Section 3 of the Railways Property (Unlawful Possession) Act, 1966 for having Railway Property of their possession, which was reasonably suspected to be stolen. Out of these tout persons Ram Dhiraj was convicted and he was sentenced to pay a fine o' Rs. 500 and is default of payment of fine to undergo R. I. for six months. Three persons, namily, Rishikesh, Avadesh Kumar and Ramesh Kumar were acquitted by the Magistrate. The State has preferred Criminal Appeal No. 38u of 1978 for enhancing the sentence passed on Ram Dhiraj. The other appeal No. 543 of 1979 has been preferred by the State against acquittal of the 3 other accused Briefly stated the facts are that one Rakshak Railway Protection Force Ram Lalit Pandey in the night of 20th December suspected Ram Dhiraj who had a bag (Bori) and on search it was found that he had some Aluminium Wire which was suspected to be Railway Property belonging to Railway and on being pointed by him some other property was recovered from a near by field. Then, on the clue given by this Ram Dhiraj the Railway Protection Force went to the house of the accused Rishi Kesh and waited there. Three other persons came with the bags and they emptied their bags containing property that was suspected to be stolen Railway property. Rishi Kesh was taking the property in his house, when he was arrested. But the three persons who brought the pro perty, could not be arrested. Therefore, on the basis of information given by Ram Dhiraj, shop of Avadesh Kumar and Ramesh Kumar was raided. From there some property-was recovered. All this property was tested by the experts of the Railway and some property out of the property recovered from all the three sets of the accused was found to be of the Railway Property ; so they were prosecuted with the result mentioned earlier. As regards Ram Dhiraj the argument of the State is that Section 3 of the Act provides that the minimum sentence which can be passed for the offence is one year's imprisonment or fine of Rs. 1000. But the provision also adds that this minimum sentence is to be passed only in the absence of special reasons. The learned Magistrate has written that he is giving this sentence because the accused Ram Dhiraj was an young mm who had not been convicted earlier. Thus, reasons are there and on this basis even benefit of Probation Act could be given to Ram Dhiraj by Magistrate. Under the circumstances, after the lapse of 14 years it will not be proper to allow appeal against Ram Dhiraj and enhance his sentence.
(3.) AS regards Rishi Kesh the learned Magistrate accepted his defence version that he had been implicated falsely and recovery from his possession was not belioved. The learned Magistrate came to this conclusion after consi dering the evidence and the circumstances that of the persons who were said to have brought the property could be arrested, and the witnesses differed as regards the tact whether occurrence took place when it was dark or not, whether the property recovered was in bags and whether Rishi Kesh was arrested in the Verandah or outside it on the road. When these contradictions were there, the trial court could take the view that the evidence is not reliable. When two views are possible, the view taken by the trial Court should not be upset, hence as regards Rishi Kesh, State appeal cannot succeed. When, there remain two persona. Avadesh Kumar and Ramesh Kumar from whose shop some property is said to have been recovered. One of the properties recovered was Aluminium wire. The trial Court did not accept it to be the Railway Property because the expert witness produced by the prosecution who said that it was Railway Property, did not give any data for his conclusion that it was Railway Property. As regards some other property he said that it was Railway Property because the wire was of 6/1/150 gauge and this had not been said in respect of the wire recovered from Ramesh Kumar and Avadesh Kumar. Even if the witness would have said it, it would not have been of much because this witness under cross-examination he said that he is not sure whether wire of this gauge is also used in Post and Telegraph Department. When the witness is not sure about it and none has seen the property being stolen from the Railway Department, no body can be sure whether property belongs to Railway Department or Post and Telegraph Department. Hence, it is not proved that this wire is the property of Railway. Then there are tome brasses. They also do not bear any mark of the Indian Railway and the expert who was examined by prosecution, did not know whether they were used in some other machines as well besides the Railway. Under the circumstances, these brasses too cannot be held to be Railway Pro perty. Then, there were some cocks, The experts say that he does not know whether such cocks are available in the market or not and he was unable to say that such cocks are used only in Railway. Again, in view of these statements, these cocks could not be held to be the property of Railway. Hence, as regards Ramesh Kumar and Avadesh Kumar the judgment of the trial Court is correct and does not suffer from any illegality. The finding that property recovered from these two persons, has not been proved to be the property of the Railway, will stand.;