STATE Vs. ALCAROLL

JUDGEMENT

(1.) Appeal under Section 378 of the Code of Criminal Procedure 1973 against the acquittal of the aforesaid respondent (Accused) of an offence under section 3(a) of the Railway Property (Unlawful Possession) Act by the Principal Sessions Judge, Coimbatore dated 16-7-1984 and made in C.A.No. 99 of 1984 (CC. No. 821/81 Judicial Magistrate, Tiruppur). This appeal coming on for hearing on this day upon perusing the petition of appeal and the record of the evidence and proceeding before the said Court of Session and upon hearing the arguments of Mr. S. Shanmughavelayutham Addl. Public Prosecutor on behalf of the State-appellant and of Mr. V. Gopinath, Advocate for the 1st respondent, Mr. G. Ravindran, Advocate for the 2nd respondent and of Mr. K. Selvarajan, Advocate for the 3rd respondent the court delivered the following judgment: The appeal is directed by the State against the order of acquittal passed by the Principal Sessions Judge, Coimbatore reversing the judgment of the Sub Divisional Judicial Magistrate, Tiruppur.

(2.) The brief facts which are necessary for the disposal of the appeal are as follows: The three respondents herein who were the accused before the trial court stood charged for the offence under section 3(a) of the Railway Property (Unlawful Possession) Act on the allegation that at 8 p.m. on 5-7-1981 below the railway bridge in Odanthurai the accused were found carrying fish plates with rails M.O.1 series. In support of the above charge the prosecution examined P.Ws.l to 3. P.W.1 is the Assistant Deputy Inspector, Railway Protection force. P.W. 2 is the Gangman. P.W. 3 is the Permanent Way Inspector. It is the evidence of P.W.1 that on 5-7-1981 at about 8 p.m. he along with his party were on rounds. At that time they noticed the three accused herein walking in the river bed below the railway bridge carrying fish plates along with rails M.O.1 series. P.W.1 and his party crossed the bridge and reached the other side of the bund. They came to the river bed and caught hold of the accused. On enquiry the accused told P.W. 1 that the fishplates and the rails were found lying in the river and they carried the same. They brought the accused along with the fishplates and rails to the nearby bunk and they noticed that they are meter guage rails. P.W. 1 seized M.O.1 series in the presence of P.W. 2 and another under cover of mahazar Ex. P.1 attested by P.W. 2 and another. He recorded the statements of the accused separately and they are marked as Exs. P2 and P3 and P4. He arrested them and took them to the Railway outpost Police Station, Mettupalayam along with M.O.1 series.A case was registered. P.W. 3 Permanent Way Inspector was requisitioned to examine M.O.1 series. Accordingly P.W.3 examined M.O.1 series and gave his certificate Ex. P.5. P.W.2 and the other attestor were examined and their statements Exs. P.6 and P.7 were recorded. After completing the investigation, the charge sheet was filed. P.W.2 the mahazar witness corroborated the evidence of P.W.1.

(3.) When the accused were examined with reference to the incriminating piece of evidence they totally denied the offence and no witness was examined. The trial judge for the reasons stated in his judgment came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt. He accordingly convicted the accused under section 3(a) of the Railway Property (Unlawful Possession) Act and sentenced them to imprisonment till the rising of the court and to pay a fine of Rs. 1,000/- each, in default to suffer rigorous imprisonment for three months. As against the conviction and sentence, the accused preferred the appeal C.A.No.99 of 1984 before the Principal Sessions Judge, Coimbatore. The learned Sessions Judge allowed the appeal and set aside the conviction and sentence and acquitted them. Hence this appeal by the State.