STATE Vs. KOTHANDARAMAN

JUDGEMENT

(1.) THE Sub Inspector of Police, Railway Protection Force, Katpadi registered a case in Crime No. 17 of 1980 for an alleged offence under Sec.3(a) of theRailway Properties (Unlawful Possession) Act (for short "the Act") During the course of investigation he apprehended one Mohan (accused 1 and Ganjendran since died before the filing of the final report) and they, it is said, made individual confession statements, implicating themselves with the crime, besides implicating the other co-accused, namely, Kothan-daraman (accused 2), Jayammal (accused 3) and Kripanandan (accused 4)). Pursuant to the confessions so made by accused 1 and Gajendran, houses of accused 2 and 4 were stated to have been searched in the presence of independent witnesses and certain railway properties were recovered from their house and those things apart, certain railway properties, which were kept concealed underneath the land stated to be belonging to accused 3, were also recovered, in the presence of independent mahazar witnesses. After completing the formalities of the investigation, he learned a prosecutions by laying a complaint, which was taken on file as C.CNo.762 of 1981 for the aforesaid offence against accused 1 to 4 by Judicial Magistrate No.1, Vellore, North Arcot.

(2.) LEARNED Magistrate, on consideration of the materials placed, found accused 1 guilty of the offence under Sec.3(a) of the Act, convicted him thereunder and instead of straightaway sentencing him, he opted to release him under Sec.4(1) of the Probation of Offenders Act, on his executing due bonds as specified in his order. He however found accused 2 to 4 not guilty of the offence with which they stood chargedand acquitted them, giving rise to the present action.

(3.) THIS apart, even the socalled independent witnesses examined for the house search effected turned wholesale hostile. Similarly the recovery of the railway properties stated to have been kept concealed underneath the land stated to have been belonging to accused 3 is not by itself sufficient to impute the knowledge of the concealment of such properties in his lands. It is not as if she has made a confession statement, pursuant to which those properties had been recovered, so that it might be legitimately permissible for the prosecution to represent that she was having conscious possession of those properties. The sordid fact is that the confession statements to the personnel belonging to the Railway Protection Force, tad been made by accused 1 and another accused, Gajendran (since died before the filing of the final report) and only pursuant to the confession they made, those properties were recovered. The Railway Protection Force personnel before whom the confessions were stated to have been made cannot at all be construed as police officers. However, such confessional statements are practically admissible in law. But hone-the-less the co-called confession of those persons, implicating themselves with the crime as well as implicating accused 2 to 4 can by no stretch of imagination be construed as evidence against accused 2 to 4 and if at all, the confessions so made by them may be taken into consideration provided there are evidence all independently proving the commission of the offence against them, In such an eventuality, the confessions given by the co-accused, accused 1 and Gajendran (since died), could be taken into consideration as a lending assurance factor to give a face lift to the case of the prosecution.