SALIM MOHAMED BABUL MINIYAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS Criminal Revision Application is filed by the petitioner/original accused, being aggrieved by the judgment and order dated 19th September, 1994, passed by the Additional Sessions Judge, Malegaon, in Criminal Appeal No. 1 of 1989. By the impugned Judgment and Order, the learned Additional Sessions Judge, Malegaon, dismissed the appeal filed by the appellant/original accused-Salim Mohammed Babul and maintained the conviction and sentence recorded by the Judicial Magistrate, First Class (Railways), Manmad, by his Judgment and order dated 1st July, 1985. The Judicial Magistrate, First Class (Railways), Manmad, had convicted accused No. 1 - Salim for the offence punishable under Section 3 (a) of the Railways Property (Unlawful Possession) Act, 1966 and sentenced him to suffer R. I. for one year and to pay a fine of Rs. 1,000/-, in default, R. I. for 6 months. The learned Judicial Magistrate, First Class (Railways), however, acquitted accused No. 2 - Bipinkumar Mohanlal Jobanputra of the said offence, who was arraigned before him as accused No. 2.

(2.) THE prosecution story, in brief, can be narrated as follows : on 5th July, 1981, at about 1. 00 hours to 1. 30 hours, some 25-30 persons entered into the impress depot near Laco Shed Manmad and started taking away some Railway Sleepers. One Gavaliram (P. W. 3), who was on duty at that time as a watchman, tried to accost those persons, but they threatened Gavaliram and made their way by taking about sixty sleepers. Gavaliram then informed this incident to his superior Mr. Dongarwal, who was permanent way Inspector at Manmad. Mr. Dongarwal then informed this matter to Railway Protection Force and Government Railway Police, with a request to take necessary action. At about 3. 15 hours, Mr. Saini (P. W. 8 ). Sub Inspector of the Railway Protection Force, Mr. Badgujar (P. W. 7) and R. P. F. staff reached the spot. P. W. 1 Mr. Dongarwal, Permanent Way Inspector was already present there. R. P. F. Staff members searched the surrounding area, but neither Railways property, nor the miscreants were traced. Then, the R. P. F. Staff got divided into two groups. One group consisting of Mr. Saini, Mr. Badgujar and Mr. Pahadiya went in search, in Chandanwadi area of Manmad and the other staff members consisting of Rakshak Jagannath and Rakshak Bismilla Khan went into Bohari Compound area.

(3.) THE prosecution story further is that Rakshaks Jagannath and Bismilla Khan noticed that two persons were carrying one Railway Sleeper. These Rakshaks followed them. The two persons entered into the compound of one shop. However, when they sensed danger, they threw the sleeper in the compound and started running. However, there was light coming from the shop and the Rakshaks could see those persons. The Rakshaks identified these persons whose names were Shivaji and Papya Amir. Shivaji and Papya managed to escape. Rakshaks Bismilla Khan and Jagannath then went into the shop and noticed that accused No. 1 - Salim was sitting in the shop. On enquiries being made with him, he disclosed that he was to purchase the sleeper thrown by Shivaji and Papya. He then also disclosed that he had purchased some more sleepers on that day. On getting this information, Rakshak Jagannath came to Mr. Saini and narrated the incident to him. Then Mr. Saini, Mr. Badgujar, RPF S. I. and Mr. Pahadiya, SRP came to the spot and made enquiries with accused No. 1 - Salim. At this juncture, a formal complaint i. e. First Information Report was lodged by Rakshak Bismilla Khan. Thereafter, accused No. 1 - Salim willingly produced 41 sleepers from inside the shop, which he had purchased on the day of the incident. These 41 sleepers and one sleeper lying in the compound (which was thrown by Shivaji and Papya) were attached under a panchanama, in the presence of two panch witnesses. On enquiries with Salim, he told that he was a servant of Bipinkumar-accused No. 2. Bipinkumar was also called at the time of seizure of the sleepers and he was present at the time of panchanama. After this, all the property was brought to the RPF office and statement of accused No. 1 was recorded. The prosecution has claimed that accused No. 1 voluntarily made his confessional statement (Exh. 46) and admitted that he had purchased the property in question. He also narrated in his statement Exh. 46 that he was a servant of accused No. 2 - Bipinkumar. Thereafter investigation was carried out and complaint was filed in the Court of the Judicial Magistrate, First Class (Railways), Manmad, at Exh. 1. Statement of accused No. 2 was also recorded, which was found not to be helpful to the prosecution.