P.D. Kudal, J. - (1.) THIS is a criminal revision by the applicant Bhola Ram against the judgment of the learned Addl. Sessions Judge No. 2, Jaipur City dated 17th January, 1972. The facts of the case, in brief, are that the accused -applicants was posted as a 'rakhsak' in the Railway Protection Force at Railway Station, Ajmer on 26/5/1969. At about 8 p.m. on 26/5/1969 his colleague Damodar Swaroop noticed the accused applicant carrying a package near the railway line on his cycle. Damodar Swaroop questioned the applicant as to why he was carrying the package from the wagon, on which the applicant replied that he should keep quiet, and be would share the booty with him. Damodar Swaroop did not catch hold of the accused applicant, but informed the Sub -Inspector, Railway Protection Force, Shri S.B. Meena, who in turn, informed the Assistant Sub Inspector Liakat Ali. Shri Meena searched for the accused and found him in the yard. On being questioned, the accused applicant gave the information Ex. P/1 that he had concealed the packet near the compound wall of the Government School. He led the police and the motbirs to the place from where article 1 was recovered. The accused also led the police to the wagon from where the packages had been removed. A case was registered under section 3 of the Railway Property (Unlawful Possession) Act, 1966, The prosecution examined seven witnesses and the defence examined one witness. The learned Magistrate held the accused applicant guilty under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and sentenced him to undergo rigorous imprisonment for a year. The appeal filed by the accused applicant was also dismissed by the learned Addl. Sessions Judge No. 2, Jaipur City on 17th January, 1972.
(2.) IT was contended on behalf of the accused applicant that the "motbirs" of the recovery memo have not supported the story of the prosecution. There were two motbirs; one has not been examined, and the other motbirs PW/7 has not supported the prosecution story. It was also contended on behalf of the accused applicant that the learned Addl. Sessions Judge has wrongly incorporated certain facto in the judgment which were not on record. The attention of the Court was drawn to the following paragraph from the judgment of the learned Addl. Sessions Judge: From the statements of these witnesses it is amply proved that Bholaram accused gave the information Ex. P/1 stating therein that he has placed the package near the compound wall of school. The same was recovered at that place burned under the ground. This information has led to the discovery of the fact of the stolen article buried under the ground near the compound wall. It was contended that in the memo of information, it is only mentioned that the accused can lead the police party to the place where the article was lying; but it is not contained in the information memo that the package was placed near the compound wall of the school. It was further contended that the learned trial Court has held that the package has been placed inside the bus, while, in fact, it has been recovered from near the compound wall of the school. It was also contended that it is the admitted position of the prosecution that the place from where the package was recovered was not in exclusive possession of the accused -applicant. It was an open place, and could be visited by any member of the public. It was contended that the charge framed against the accused was defective. In the charge it was mentioned that Damodar Swaroop Rakhsak caught hold of the accused with the stolen article. But the prosecution case is that Damodar Swaroop saw the accused with the article, and informed his officer about it.
(3.) ON behalf of the State, it was contended that the guilt of the accused has been fully established. It was also contended that if the exact place where the stolen article was hidden, or kept, is not precisely indicated in the information memo, then too the essential ingredients of Section 27 of the Indian Evidence Act are established. It was also contended that the recovery was immediately made, and that the facts and circumstances of the case fully establish that the accused applicant was in unlawful possession of the railway property. It was also contended that minor contradictions in the prosecution evidence, and certain reference to the facts not on record by the learned Addl. Sessions Judge, could not, in any way, affect the prosecution story, which has succeeded in the establishing the guilt of the accused -applicant.;