STATE Vs. SHIVENDRA PRATAP SINGH

JUDGEMENT

(1.) THIS appeal has been filed by the State against the order and judgment dated 11-7- 1973 of Special Railway Magistrate, North Eastern Railway, Varanasi acquitting the respondent of the charge under Section 3 of the Railway Property (Unlawful Possession) Act. The prosecution case as revealed in the FIR and by the prosecution evidence briefly stated is as follows : Respondent -Shivendra Pratap Singh was the chargeman in Traction Assembly Stores, Diesel Locomotive Works, Varanasi. On 24-12-1971 at about 4.30 P. M. after finishing his duty he wanted to leave the workshop by lorrygate on his Motorcycle. Pawan Kumar Madan (P. W. 3) Inspector, RPF was on duty. Because the respondent wanted to leave in a hurry Pawan Kumar Madan felt suspicious and he stopped him. He directed Nizamuddin Ansari (PW 9) A. S. I., R. P. F. to make a search of the motorcycle. He, accordingly, took search of the motorcycle in the presence of Pawan Kumar Madan (PW 3) and Devi Paltan Lal (PW 2) Rakshak R. P. F. On search, two coils of cable wires Exs. 6 and 7 wrapped in a polythene and having the labled reeling slips lead seal from the tin box which was attached to the carrier of the motorcycle of the accused was recovered. A. S. I. Nizam Uddin prepared the search and seizure memo Ex. Ka. 6 and the copy of the same was given to the accused. They were sealed at the spot in the same tin container Ex. Ka. 3. Nizam Uddin took the accused along with the sealed tin container to the R. P. F. Post D. L. W. Ram Prasad Singh Rakshak (PW 4) then made necessary entries in the general diary at 5.15 P. M. at the instance of Sri Ansari. Enquiry of this case under Section 8 of the Act was made by A. S. I. Nizamuddin himself. He inspected the site and prepared the site- plan Ex. Ka. 6. The sealed articles were kept in the Malkhana. Parvesh Ji Arora (PW 1) who was the senior chargeman, D. L. W. Varanasi inspected both t!ie articles at the R. P. F. Post under tie orders of the Superintendent, Traction Assembly Shop. The goods were taken out from the workshop by A. S. I. Nizamuddin and after inspection they were again sealed and kept in the Malkhana. Sri Arora had found the seal intact and had compared it with title sample seal. He submitted his report Ex. Ka. 3 after examining those cable wires. He gave his expert opinion that that type of material was being used in D. L. W. Traction Assembly Shop. A. S. I. Nizam Uddin had also gone to Poona in order to make enquiry from the firm which supplied those goods to D. L. W. Sri K. B. R. Rao, Technical Manager (PW 6) Western Insulated Cables Ltd. Poona gave his opinion in writing which is Ex. Ka. 9 that the cables with the reeling slips which had been shown to him had been despatched to D. L. W. siding vide challan No. PC/5905 dated 22-4-1970. The sealed bundles were taken to Poona by A. S. I. Nizam Uddin accompanied by his superior officer, Inspector Pawan Kumar Madan (PW 3). M. R. Hawlikar (PW 7) who was the Chief Tester in India Cable Co. Ltd. Poona also examined those cables and prepared test sheets Ex. Ka. 12 and Ex. Ka. 13. According to him the reeling slips which were Ex. 10 and Ex. 11 tallied with the material which was sent in that batch. He being the chief tester used to check each batch before it was despatched. The accused had also made a statement in writing dated 24-12-71 (Ex. Ka. 17) before the A. S. I. Nizam Uddin (PW 9) soon after his arrest. After completing the enquiry, A. S. I. Nizam Uddin filed a complaint Ex. Ka. 18 against the accused who was duly tried.

(2.) THE accused admitted that the cables Exs. 6 and 7 were recovered from the tin carrier of his motorcycle. It was, however, not locked and he did not know who had kept these goods in the tin carrier. He stated that he himself was surprised as to who had kept these articles in his carrier. He then stated that those cables were not used in D. L. W. because they did not bear any marking of the D. L. W. He, further stated that he did not know if the firm, Western Insulated Cables Ltd. Poona had supplied such cables to the D. L. W. He also stated that he did not know if such cables were received in the store but there was no shortage in the stores. With regard to his written admission he stated that Pawan Kumar Madan had asked him to give his explanation in writing. He had written something but he (Madan) had torn it out and told that he should write whatever he was asked to write. Madan had threatened him that otherwise he would be kept in the lock-up atleast for two days and it would ruin his reputation. He also told him that after all he would get another opportunity before the Magistrate. he got very much perturbed and then gave his statement Ex. Ka. 17 in writing. Lastly he stated that Madan was inimical to him and so he got him falsely implicated in this case with the help of his own R. P. F. men. He examined four witnesses in defence, namely, Samar Bahadur Singh (DW 1), Subrata Ghosh (DW 2) Krishna Chandra Srivastava (DW 3) and Kashi Prasad Singh (DW 4)., Samar Bahadur was the officer in-charge of R. P. F., D. L. W. He has not said anything particular except that a register was kept at the special gate of the workshop. DW 2 Subrata Ghosh stated that a meeting of the Area Committee was held in December, 1971 and) R. P. F. Inspector Pawan Kumar Madam attended that meeting. In that meeting; it was discussed that a number of thefts were being committed in the colony and that the R. P. F. was not being able to control the thefts. In that meeting S. P. Singh, accused had said that there was no use to entrust the R. P. F. with the duty of checking the theft etc. outside the workshop because the R. P. F. had failed to check up the thefts. Pawan Kumar Madan reacted to these remarks and had left the meeting. At that time he had said that he would show how to check the theft and would take precaution to catch the criminals. Sri S. P. Singh was the elected member of the Area Committee. He was then implicated in this case after 2 or 3 weeks. DW 3 Krishna Chandra Srivastava stated that on 24-12-71 he met S. P. Singh at about 1.30 P. M. He had then gone with S. P. Singh to the material control section for checking the printing of material issue slips. He had gone through the main gate. He stayed there for about an hour. At about 4.15 P. M., S. P. Singh had a talk with him that he would go to his house and then he left for his house. He subsequently learnt with great surprise that he was implicated in this case. Kashi Prasad Singh DW 4 stated that in 1971 Pawan Kumar Madan had asked him to give some condemned pipes for getting his sofa-set prepared. THE accused S. P. Singh was the supervisor at that time and the witness had worked under him and he told Pawan Kumar Madan to contact S. P. Singh as it was not possible for the witness to arrange for the pipe. THE witness then stated that after 3 or 4 days S. P. Singh had told him not to give pipes to Madan. THE witness, however, admitted that such pipes could not be taken out of the workshop. That could be taken by committing theft only. This suggestion was given to Madan also but he denied the suggestion.

(3.) THE learned Magistrate further held that the confessional statement, paper no. A-6 (Ex. Ka-17) was the only evidence which was brought in this case for proving the prosecution case completely and in case this statement was excluded the prosecution case could not be proved. He then excluded this statement from consideration on the ground that it was hit by Sec. 162 CrPC as the A. S. I. Nizam Uddin Ansari (PW 9) of R. P. F. was the Police Officer who was conducting the enquiry under Ch. 14 of the Criminal Procedure Code. THE learned Magistrate repelled the argument of the learned counsel for the accused that the confession was obtained by threat or inducement and held that it was not hit u/S. 24 of the Indian Evidence Act. He held that the confession otherwise was complete. He ultimately held that it was hit under Sec. 25 of the Indian Evidence Act as it was recorded before the Police Officer and, as such, it was to be excluded from consideration. After excluding this confession he held that the prosecution case was not proved beyond reasonable doubt as the chances that accused had no knowledge about the presence of cable coils Exs. 6 and 7 in the tin box are not excluded in entirety. He, therefore, gave benefit of doubt to the accused and acquitted him.