STATE OF U P Vs. SATYA NARAIN

JUDGEMENT

(1.) R. A. Misra, J. This appeal arises out of the order dated 29-5-1985 passed by Sri A. K. Kaushik, Judicial Magistrate, First Class, Northern Railway, Lucknow acquitting the respondent of the charge under Section 3 of the Railway Property (Unlawful Possession), Act, 1966.

(2.) THE prosecution story is that on 15-2-1983 Jwala Prasad and Ram Sajiwan two railway constables while on patrol duty at about 1 O'clock in the night found the accused-respondent hiding himself in the bushes on the back of the wheel shop near the Turn table. THEy rushed and found the respondent there and over-powered him. THEy recovered one kilogram of copper wire from the possession of the respondent and prepared recovery memo thereof on the spot and kept the wire in a sealed cover. A case was registered against the respondent on the basis of the recovery memo and charge-sheet was submitted against him. THE respondent pleaded not guilty and claimed to be tried. THE prosecution examined Virendra Kumar, Senior Chargeman P. W. 1, Jwala Prasad, P. W. 2 and closed the evidence. THE accused did not examine any witness in defence. Learned Magistrate on a consideration of the entire evidence arrived at the conclusion that the prosecution has failed to prove beyond doubt that the copper wire recovered from the possession of the respondent was 'railway property'. THE learned Magistrate has discarded the testimony of the witnesses of fact after taking into consideration the discrepancies and improbabilities in their depositions. Learned Addl. Govern ment Advocate says that deposition of Virendra Kumar prove that the property recovered is 'railway Property'. He has read over the examination-in chief of Virendra Kumar, P. W. 1, but there is not a word in his examination-in-chief to say that the property recovered is a 'railway Property', as defined in Railway Property (Unlawful Possession) Act, 1966. He simply says that after examining the material he arrived at the conclusion that such material is used in Railway Workshops. THE mere fact that a material is used in Railway Workshops does not make a material Railway Property. It was duty of the prosecution to prove that goods alleged to have been recovered from the possession of the accused belonged to or were in charge or possession of a Railway Administration. THEre is not a word in the deposition of Virendra Kumar to show that the copper wire alleged to have been recovered from the possession of the accused, belonged to or were in charge or posses sion of the Railway Administration. THE finding of the Magistrate that the prosecution has tailed to prove beyond doubt that the property is a Railway property, is under the above circumstances, perfectly justified and is not at all perverse so as to interfere with in appeal against acquittal. This finding alone was sufficient to record verdict of acquittal in favour of the respondent but the learned Magistrate has taken pains to scrutinise the evidence on record and has given goods reasons for refusing to place reliance on the oral testimony of prosecution witnesses of fact, THE reasoning of the learned Magistrate is again not at all perverse. THE appeal against acquittal shall, therefore, be dismissed. THE appeal is dismissed. Appeal dismissed. .