STATE OF MAHARASHTRA Vs. SUDHAKAR FAKIRCHAND

JUDGEMENT

(1.) This is an appeal by the State against the order of acquittal passed by the learned Judicial Magistrate, First Class, (Railways) Bhusawal. Originally there were two accuseds. However accused No. 2 was discharged by the learned Magistrate before the charge was framed.

(2.) The prosecution case was that accused No. 1 is a ramoshi i. e. watchman and an employee of the Railways. At the relevant time, he was working at the A. C. Loco shed at Bhusawal along with other ramoshis. The machine shop of the loco shed had a stock of white metal. At about 2.30 p. m. on 13-5-1973, one of the ramoshis viz. Mubarakali ( P. W. No. 2 ) saw accused No. 1 coming from outside and entering the gate of a building at the loco shed with a fatchel containing white metal. He saw accused No. 1 taking it upstairs to the meeting hall and there-after at about 5.30 p. m. he also saw him coming down empty-handed. At the time, accused No. 1 asked Mubarakali in a thereatening voice not to disclose the said fact to any body else. Thereafter accused No. 1 went home and came at about 7.00 p. m. in the company of an outsider who was accused No. 2 In the mentime, Mubarakali had informed rakshak Umaji Limbaji about what accused No. 1 had done. On his return from his house, accused No. 1 and his companion were accosted by the said rakshak Umaji Limbaji and both were detained by the said rakshak. At about midnight, the rakshak sent a phone message to the R. P. F. Office that some ramoshi had stolen railway property. A. S. I. Chaudhari ( P. W. No. l)received the said call and went to the loco shed. The ramoshis who happened to be there were taken to the R. P. F. office and kept detained. At about 2.30 a.m. on 14-5-1973, accused No. 1 confessed that he had stolen white metal and had kept it concealed at the meeting hall in the loco shed. Chaudhari waited till 3.00 a. m. til! S. T. R. P. F. Gurudatta ( P. W. No. 6 ) arrived by Punjab Mail - Then panchas were called and a memorandum of panchanama was drawn about the offer made by accused No. 1 to show where the material was kept hidden and also the place from where it was stolen. Then the party proceeded to the loco shed and according to the prosecution, the accused No. 1 showed the satchel under the table in the meeting hall on the first floor and also the box containing the stock in the machine shop on the ground floor of the loco shed from where he had taken out the white metal. A panchanama was made of the said discovery and thereafter accused No. 1 was taken to the R. P.F. Office. The memorandum of the statement leading to the discovery and the said panchanama together Ex. 19 on record. At the R. P. F. Office, accused No 1 made a confessional statement which was recorded by Gurudatta which is Ex. 20 on record,The metal attached under the panchanama Ex. 19 was got examined from an expert who opined that it was railway property. Thereafter both the accused were charge sheeted for the offence under section 3 (a) of the Railway Property (Unlawful possession) Act, 1966. As stated earlier, the charge was framed by the learned Magistrate only against accused No. 1 and accused No. 2 was discharged.

(3.) At the trial, the prosecution examined among others, Ganpat Chaudhari (PW No. 1) the investigating Officer, Gurudatta (P.W.No.6) another investigating Officer, Mubarakali (P.W. No. 2) who allegedly saw accused No. 1 entering the loco shed building with a satchel containing white metal and who informe rakshak Umaji Limbaji about it, Akbarali (P.W. No. 3) panch for the panchanama Ex. 19 Pandit Bhole (P.W. No.5) panch for the document Ex. 20 and Sarkar (P.W. No. 4) the Chemist and Metal-lurgist to prove that the metal was a railway property.