(1.) THE applicants have been convicted u/Sec. 3 of the Railway Property (Unlawful Possession) Act and sentenced to 1 Year's R. I. and fa fine of Rs. 1000/- by the trial court. In default of payment of fine, they have been directed to further undergo 3 months R. I. THEir conviction and sentence have been maintained in appeal by the Sessions Judge, Varanasi, hence this revision.
(2.) I have heard learned counsel for the applicant at great length and have also perused the impugned orders. According to the prosecution case Rajendra Upadhyay and others were patrolling in the Up marshalling Yard, Moghal Sarai at about 11. 20 P. M. on 18th March, 1975. When they reached between the lines nos.10 and 11 in the Yard, they saw two accused-persons standing on line no. 11 towards the north of a Goods Train Wagon. One of the accused was taking out something from the railway wagon and passing on to the other who was standing nearby. The raiding party challenged the accused and flashed torch. Both the accused- applicants were arrested by Satya Narain Singh who was one of the raiding party. these two accused are Rakshaks of the Railway Protection Force, Moghalsarai. Three pairs of Bata Chappals were recovered from the possession of Birbal and 7 pairs of Bata Chappals were recovered from the possession of Sudama. A seizure memo (Ex. Ka. 1) was prepared on the spot by Ram Adhar Ram (P. W. 2) which was signed by the accused. Thereafter, the accused with the recovered aricles were taken to the R. P. F. post where the report was lodged and recovered articles were sealed. On these allegations, the applicants have been prosecuted and convicted as above. Both the courts below on a consideration of the evidence on the record and the circumstances of the case have held the guilt of the accused fully established. I do not find any illegality or perversity in the finding of fact recorded concurrently by both the subordinate courts to warrant interference in revision.
(3.) THE applicant's counsel has urged that clear receipt has been given by the consignee of the package of chappals and therefore, it should be presumed that there is no shortage of chappals. This argument is too farfetched to be accepted. Whether a consignee can make a claim against the railway administration after giving a clear receipt is a different question altogether with which an offence under Sec. 3 of the Railway Property (Unlawful Possession) Act is not connected. What a court has. to see in the circumstances of the present case is whether the goods in the possession of the Railway which were being conveyed and in due course of transit, have been unlawfully stolen or removed by the accused-applicants from the wagons in which the packages containing the chappals had been kept. THEse circumstances are quite sufficient for upholding the conviction of the accused] under Sec. 3 of the Railway Property (Unlawful Possession) Act.