STATE OF MAHARASHTRA Vs. MOHD. HUSSAIN ABDUL RAJAK

JUDGEMENT

(1.) THE present appeal is preferred by the State of Maharashtra at the instance of R.P.F. C.C.B. and the same seeks to impugn an order of acquittal passed under section 3 of the Railways Property (Unlawful Possession) Act, 1966. Three accused were prosecuted at the trial. It was alleged that on 25/11/1982 at about 5.45 p.m. the accused were found in possession of a truck bearing No. MRT 3568, which was loaded with bearing plates and distance block which was railway property. Accused No.1 is the owner of the truck whereas accused No.3 is its Driver. Both of them were occupying the driver's cabin. Accused No.2 was sitting in the body of the truck.

(2.) AS far as accused No.2 is concerned, he disputed that the property seized from his possession was railway property. According to him, it was scrap which he had purchased from various dealers in the market.

(3.) WE , with the assistance of the learned Counsel appearing for the contending parties, have gone through the evidence on record. As far as the identity of the property is concerned, witnesses examined on behalf of the prosecution include P.W.2 Nandakishor Omkarlal Yadav, P.W.4, Purushot-tam Udaram Butani, and P.W.5 Luxuman Raghunath Burhade. Having appreciated their evidence we find that it cannot be held that the prosecution has proved beyond reasonable doubt that the property in question is railway _7''3 èproperty. We have also perused the reasons assigned by the learned Magis-trate for arriving at a similar finding that the prosecution has failed to prove that the property is railway property. The learned Magistrate has inter alia pointed out that the property seized was lying in the open space by the side of the office when it was shown to the expert witness for identification. The learned Magistrate has pointed out that P.W.2 Nandki-shor does not know whether Bombay Port Trust or Tatas and Birlas have their railways in their factory implying that the property in question could be disposed of scrap by them. The witness has admitted that the slip on one of the two bearing plates does not bear his signature and that he might have forgotten to sign it. He has admitted that marking on the two bearing plates were different and distance blocks had also different markings. He was unable to produce original map and drawings as the same were not trace-able. He has given the certificate regarding identity of property as it appeared to him like railway property.