DUKHRAN Vs. STATE OF U.P.

JUDGEMENT

(1.) This revision has been preferred against the judgment and order dated 20.07.1989 passed by the IInd Additional District and Sessions Judge, Varanasi in Criminal Appeal No. 200 of 1987 maintaining the conviction of the revisionist under section 3 of the Railway Property (Unlawful Possession) Act, 1966 and sentencing the revisionists to undergo rigorous imprisonment for one year.

(2.) Brief facts of the case are that on 16.07.1989 K. Bimal & Co. dispached six bales of staple chadars from Amritsar to Hawrah vide R.R. No. 537562. During the course of transit one bale of staple chadars was stolen at Moghalsarai yard. It was detected at the destination station on 27.07.1979 by Dalip Kumar Banerji, Head Goods Clerk, Hawrah Goods Shed No. 6 when he got the consignment from the wagon No. NR 69756. Dalip Kumar Banerji was also found the seal of the wagon to be in broken condition. According to the railway receipt (RR) there ought to have been 116 packages but only 112 packages were found whereas four packages were missing, which were of the following description.

(3.) A description of the goods found short was entered in unloading register. A D.D. message was sent to Moghalsarai. The theft is alleged to have been committed in the night of 22.07.1979. It is alleged that on 23.07.1979 SI RPF Madhomani Tripathi received an information from some informer that some persons will be committed theft of railway property of Moghalsarai yard. Accordingly, SI, D.K.Home, ASI R.K. Mishra, ASI Bishambhar Pathak and ASI R.S. Upadhya and Head Rakshak Babu Ram along with detective dogs reached to the sought of the Basratia railway gate between 2 or 2.30 a.m. This gate is situated in between link Cabin and Ganj Khwaja railway station. The aforesaid police party was present 100 yards south to the aforesaid railway gate. They saw six persons putting some bundles at their heads going to village Dhoos. They were arrested by the police party with the help of the dogs. One of them made his escape good after throwing the articles in his possession. He was identified by ASI R.K. Mishra in the flash of torch as Andhi, resident of village Dhoos. The bundles of staple chadars which Andhi had thrown contained 23 chadars. The other arrested accused were Hansa, Hardeo, Mithai, Nakchhed and Dukhran. Hansa was found in possession of 36 Toosh chadars, Hardeo was found in possession of 32 chadars, Mithai was found in possession of 28 chadars, Nakchhed was found in possession of 43 chadars. A wooden box containing packets of colour was found from the possession of Dukhran. The chadars recovered from the possession of the accused were bearing trade mark and name "India Lamba Quality Toosh Karan Textiles Mills India". The wooden box also bore some railway mark. The chadars recovered from the possession of each of the accused were also bearing the marks. The recovered articles were separately kept and seizure memo was prepared by SI Madhomani Tripathi. The recovered articles and the arrested accused were broght to R.P.F. post. The recovery was entered in the G.D. by SI Madhomani Tripathi and a report was lodged by Madhomani Tripathi to the Inspector R.P.F. On the basis of the said report a case under section 3(a) of the Railway Property (Unlawful Possession) Act was registered. The charges were framed against the accused, who pleaded not guilty. The prosecution in order to bring home the guilt to the accused examined SI Madhomani Tripathi as PW-1, ASI R.K. Mishra as PW-2, Dalip Kumar Banerji, Head Goods Clerk as PW-3, SI Basant Kumar Singh as PW-4, Satish Prakash partner of K.Bimal & Co. as PW-5, ASI D.K. Home as PW-6. The accused were examined under section 313 Cr.P.C., who denied the recovery from their possession.