RAJA Vs. STATE BY ASSISTANT SUB-INSPECTOR OF POLICE

JUDGEMENT

(1.) Challenging the conviction for the offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 passed before the Civil Judge (Junior Division) and Additional Judicial Magistrate First Class in C.C. No. 6311 of 1999 by order dated 7-9-2006, which has been confirmed by the Fast Track Court, Bhadravathi in Cri. A. No. 93 of 2006, dated 4-3-2010, this revision petition is preferred by the petitioners under Section 397 read with Section 401 of the Criminal Procedure Code, 1973. The revision petitioners 1 to 3 were accused 1, 2 and 4 before the Magistrate. The case of the prosecution was that on 27-8-1999 at about 4.45 a.m., these petitioners and another were pushing the wooden log near railway track towards left side after cutting the tree. It was noticed by the Railways Officials while they were on patrolling duty. After seeing the officials, all the accused persons ran way from the spot. They were chased by the railway officials and managed to caught hold of petitioners 1 and 2-accused 1 and 2. On enquiry, accused 1 and 2 failed to give satisfactory answer and hence, the officials came to the conclusion that with an intention to take away the railway property, the accused have cut, teakwood tree and caused damage to the railway property. In the presence of two witnesses, the property was seized under a mahazar and upon completion of investigation, a charge-sheet came to be filed against all the four accused for the offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966. It appears during the pendency of the case before the Magistrate, accused 3 died and thereby the case against the accused 3 stood abated. Accused 1, 2 and 4 denied the accusation. The prosecution in order to prove the charges levelled against the accused persons examined as many as eight witnesses as P.Ws. 1 to 8 and relied upon 19 documents marked as Exs. P. 1 to P. 19, apart from M.Os. 1 to 17. The learned Magistrate upon hearing both the learned Counsel and on appreciation of the evidence by his order dated 7-9-2006 fond them guilty and thereby they have been convicted for the aforesaid offence and have been sentenced to undergo simple imprisonment for a period of one year apart from payment of fine of Rs. 1,000/- each. The judgment of conviction and sentence passed by the Magistrate was taken in Cri. A. No. 93 of 2006 on the file of Fast Track Court at Bhadravathi. The learned Presiding Officer of the Fast Track Court upon re-appreciation of the evidence confirmed the judgment of conviction and sentence passed by the Magistrate, while dismissing the appeal by his order dated 4-3-2010.

(2.) Out of the eight witnesses examined by the prosecution, P.W. 1-Siddalingaiah, P.W. 2-Vijaya Kumar, Shivakumar-P.W. 3, P.W. 4-Thimmappa are all railway officials. P.Ws. 5 and 6 stated to be the independent witnesses are the panchas to the spot panchnama, whereunder the wooden logs were seized. P.W. 7-P. Venkataramana Reddy-Section Engineer attached to the railways and P.W. 8-Basavaraja is an independent witness before whom the voluntary statements are said to have been given by the accused. Out of the eight witnesses examined by the prosecution, the so-called independent witnesses, P.Ws. 5, 6 and 8 turned hostile to the prosecution case. Of course all other witnesses by and large supported the case of the prosecution. Though learned Counsel for the petitioner has submitted that no material has been produced to show that the tree cut by the accused is the tree belonging to the railway, the prosecution has produced the documents such as sketch as per Ex. P. 19 and Ex. P. 7-Joint Survey Report and Ex. P. 8-certificate for having given SR mark to the tree standing by the side of the railway track. For the purpose of this case those documents are sufficient to hold that the tree that was cut on the railway property belongs to the Railway Department. It is a fact that accused 1 and 2 were caught red-handed and on the strength of the statement made by two others, the accused were also arrested and charge-sheet came to be filed against all the accused. Merely because P.Ws. 1, 2, 3 and 4 are the railway officials witnesses, their testimony cannot be discarded. At the most, their evidence will have to be scrutinised with due care and caution. In the wee hours, it is impossible to get independent witnesses and since the accused are from the same village, it is rather difficult to get independent witnesses, if not, impossible. Be that as it may, both the learned Magistrate and the Sessions Judge upon appreciation of the evidence placed on record have come to the conclusion that the accused have committed an offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966. I do not find any reason to call for my interference so far as the conviction of the accused under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 is concerned.

(3.) So far as the sentence is concerned, learned Counsel appearing for the petitioners has brought to my notice that in a similar case, this Court has modified the sentence of imprisonment imposed by the Magistrate and the Sessions Judge and ordered to pay the fine amount. I have no reason as to why the same analogy should not be applied to the facts and circumstances of the case. It is seen that accused 1 is hardly aged about 38 years, accused 2 is 56 years and accused 4 is 45 years. They must be having family of dependants. The alleged incident took place way back in the year 1999 and if at this length of time, if they are sentenced to undergo imprisonment and they being the bread earner of the family, the family would suffer. Having regard to all these facts and circumstances of the case, in my view, ends of justice will be met, if fine is imposed in modification of the order of sentence of imprisonment. Hence, I pass the following order: