DNYANESHWAR SHRIPATI KALE Vs. STATEOF MAHARASHTRA

JUDGEMENT

(1.) The petitioner Dnyaneswar Shripati Kale (Original accused No. 3) has filed this Revision Application against his conviction under sectipn 409 read with section 109 of the Indian Penal Code and the sentence of imprisonment till the, rising of the Court and fine of Rs. 1000- imposed upon him on this count.

(2.) On February 14, 1973 at about 4-00 a. m. Rakshak Razak and Rakshak Siddiq Ali of the Railway Protection Force, Detection Branch, went to the Railway yard at Kirkee for petrolling Both of them were in plain clothes. When they arrived near the Governor siding near line No. 4, they saw from a distance of about 30 to 40 feet that accused No. 1 Deepchand Agarwal, a trader residing in the nearby hutment colony, was standing near a railway engine. He had a bicyle near him at that time. The two Railway Rakshaks also further saw two persons passing three guny bags of charcoal to sccustd No. 1 Deepchand Agarwal standing near the railway engine. They felt suspicious and proceeded further but the railway engine was immediately started and it went towards Bombay side. The two Railway Rakshak caught accused No. 1 Deepchand Agarwal and found that he had kept onegunny bag filled with charcoal on his bicycle and the other two gunny bags were lying by his side. Accused No. 1 Deepchand Agarwal was apprehended on the spot and on a enquiry being made they came to know that accused No. 2 Sham.Govind Jadhav was the driver & accused No. 3 Dnyashwar Shripati Kale was the fireman of the railway engine which had moved towards Bombay side. Accused No. 1 Deepchand Agarwai and those 3 bags of charcol were taken to Poona and they were produced before R.P.F. Sub-Inspector Rathod at about 10 a. m. Rakshak Razak filed a complaint on behalf of the State before R. P. F. Sub-Inspector Rathod who recorded confessional statement No. 1 Deepchand Agarwal. Accused No. 2 Sham Govind Jadhav and accused No. 3 Dnyaneshwar Shripati Kale came to be arrested on February 17, 1973. R. P. F. Sub-Inspector Rathod recorded confessional statement of these two accused also on February 19, 1973 and after carrying on the necessary investigation he eventually prosecuted all the three accused for offences under section 3 of the Railway Property [unlawful possession] Act. 1966 and section 409 read with section 109 of the Indian Penal Code.

(3.) All the three accused denied the charge and pleaded not guilty. For the purpose of this revision application, it is not necessary to refer to the pfeas put forth by accused Nos. 1 and 2. Accused No. 3 Dnyaneshwar Kale admitted that on the date of the alleged offence, he was on duty on railway engine No. 25369 as fireman which was then shunting in the railway yard at Kirkee. He, however, denied that he had committed any offence and put forth a plea that R.P.F. Sub-Inspector Rathod had obtained his confessional statement by giving him thereats etc. and he had complained about this to the trial Magistrate on the very next day.