STATE OF ORISSA Vs. B. SUBUDHI

JUDGEMENT

(1.) THE Respondents having been acquitted in at prosecution under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the 'Act') the State has preferred this appeal.

(2.) THE case against the Respondents in the trial was that the Respondent No. 1 was the Brakeman and, Respondent No. 2 was the Guard of the Asonsol -Puri Passenger train on 20.9.77, they having taken over such charge from Bhadrak railway station Respondent No. 1 was occupying the Brakevan towards front of the train and the Guard van was at the rear. A parcel van of whom the Guard was also in charge was adjacent to the guard van. The train left Bhadrak railway station at 11.30 p.m. P.W. 6 a Rail way Rakshyak escorting the train saw at Jenapur station the Respondent No. 1 to have gone to the Guard. At Nirgundi station both P.W. 6 and P.W. 7 another Rakshyak found the Respondent No. 1 coming, from the Guard's brakevan with a red bag containing some articles and going towards the front brake van. P.W. 7 accosted the Respondent No. 1 enquiring about the contents of the bag to which the Respondent No. 1 replied of having inside it some cloths and plastic wires given by the Respondent No. 2 to him. P.W. 6 further asked the Respondent No. 1 as to wherefrom the Respondent No. 2 had got the articles and received the reply that the Respondent No. 1 had brought them from the brakevan. It was the statement of P.W. 7 that the Respondent No. 1 had replied of the Guard having got the articles from the luggage -van. The articles in the bag were kept by the Respondent No. 1 in his Line box in the front brake -van. P.W. 6 asked P.W. 7 to keep a watch on him and proceeded towards the rear brakevan. The train reached Cuttack at 1.30 a.m. of 21.9.77 where P.W. 6 reported the matter at the R.P.F. Post, P.W. 1, a Sub -Inspector of R.P.F. receiving information about the pilferage of the cloths from the parcel van went to the station along with P.W. 2, another Sub. Inspector of R.P.F. where they met P.Ws. 6 and 7 and receiving information from them that some Khadi Dhotis had been kept concealed in the guard's brake -van by the guard and that some such dhoties had also been kept concealed by the Respondent No. 1 in his line box, he directed P.Ws. 2 and 6 to search the brakevan and himself along with P.W. 7 proceeded to the front brake van. Since the Respondent No. 1 was busy in loading and unloading the parcels, he could not check the front brake -van and hence when the train started, he proceeded on the same to Khurda Road. There the Respondent No. 1 opened the line box unlocking the same and therein a red bag containing three pieces of Khadi silk dhoties and three bundles of plastic knitting wire were found for which no satisfactory account could be given by the Respondent No. 1 excepting that he received the same from the Respondent No. 2 at Nirgundi railway station. P.W. 1, seized as per Ext. 1, the Khadi silk dhoties and the plastic wires. P.W. 1 thereafter came back to the rear brake van He received the seizure list, Ext. 3 from P.W. 2 who had seized two pieces of Khadi silk dhoties from underneath the seat of the Guard between the newspaper bundles in the guard's brake -van and he also received Ext. 2 the F.I.R. lodged by P.W. 6, from P.W. 2. He asked the Respondent No. 2 to open the dog box in the brake van, but he pleaded inability saying the key not to be with him. P.W. 3, the Inspector of R.P.F. also reached the spot receiving information of pilferage of cloths having taken place and went to the guard's brake -van and asked the Respondent No. 2 about the case to which the Guard kept silent and thereafter informed of he having pilfered at Jenapur Khadi dhoties from the registered insured parcel kept in the luggage van through the dog box and that he had kept the dhoties in a black cloth hand bag inside the dog box and had locked it. Since the key was not provided on being asked, P.W. 3 called the available carriage staff of the station and broke open the lock and inside it found a black hand bag containing 11 pieces of Khadi silk dhoties of different sizes and qualities of which on 7 pieces of Khadi silk dhoties at corners there were printed handwritten slips of "Rameswar Prasad Ramdhani Ram Nepura P.O. Silao, Nalanda, Bihar, quality No. 18 size 4 1/2 X 54 Sudh Khadi and Tusser Silk Se", on three other pieces the size was scribed as 4 X 54 and quality No. 17 and in another piece the size was written as 4 1/2 X 54 and quality No. 20. In the same bag there was a small steel knife with wooden handle and also a small hammer with steel handle with the facility at one end for extracting nails and the facility at the other end for use as a screw driver. He seized the con tents of the cloth bag as also the articles recovered. He also found the partition wall in between the luggage van and the dog box broken leaving a passage for passing of a person from the guard's cabin to the luggage -van through the dog box. He checked the insured parcels on platform and found one of the insured parcels seals to be broken and tampered at one corner and the tampered place restitched upto the place where the lac of the seal was broken. He brought that parcel to the Parcel office for being weighed which on weighment was found to be 31 Kgs. instead of 41.5 Kgs. The seizure list Ext. 4 showing seizure of 11 pieces of cloths, steel knife as also the hammer was received by P.W. 1. All the parcels had been unloaded at Khurda Road station except the parcels meant for Puri, The parcel whose seal appeared to have been broken had the printed mark of Sile -341685/P -ISBC. An inventory of the parcel was made at Khurda Road in presence of the Chief Parcel Clerk, the Station Master and P.W. 2. From inside it, 52 pieces of Khadi dhoties and two pieces of handkerchief were found and the weight of the parcel, though was required to be 41.5 Kgs according to the way bill and the R.R., yet was found to be only 31 Kgs. The train thereafter proceeded to Puri P.W. 1 telephoned the A.S.I. of R.P.F. at Puri to inspect the luggage -van since he suspected that there were stolen properties inside it. P.W. 4 is the A.S.L. of R.P.F. at Puri who searched the luggage -van there while the, train was being washed and recovered from a closed but unlocked steel almirah a bundle containing 14 dhoties. Such dhoties were seized and were handed over to P.W. 1 as per seizure list, Ext. 8. Two dhoties, one from inside the parcel and the other from out of the seized articles, were taken by P.W. 1 to the firm Ramdhani Ram at Silao where they were identified by P.W. 9 as having been sent by the firm in the insured parcel. The Respondent No 2 also made a confessional statement. Ext. 13 before the P.W. 1 of he having pilfered the dhoties, P.W. 1 also recorded the statement of the Respondent No. 1, Ext. 14 who stated of the Respondent No. 2 having removed the dhoties and having given three pieces to him. On completion of investigation a complaint was filed by P.W. 1.

(3.) THE learned Magistrate in acquitting the Respondents held as follows: