LITIN CHANDRA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This application under Section 401 of the Criminal Procedure Code, 1973 is directed against the judgment and order dated 11-1-1982 passed by the Additional Sessions Judge Kamrup, Gauhati maintaining the conviction of the accused petitioners under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and sentencing each of them to undergo rigorous imprisonment for six months and to pay a fine of Rs.100/- in default to undergo rigorous imprisonment for another 15 days.

(2.) The case of the complainant was that on 27-9-74 at about 9. p.m. at New Gauhati Railway Yard, the Railway Rakshak (R.P.F.) on yard duty detected the accused persons who were railway employees, stealing Basmati rice from Railway wagon No. 60380. They were caught red handed with the stolen rice by the Railway Police and rice weighing 10 Kgs. was seized from possession of each of the accused persons. The case was investigated by the Railway Police and the petitioners were charged for commission of an offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, hereinafter the Act. The prosecution examined 4 witnesses, who deposed that the accused persons were caught red handed with bags of rice near Railway wagon No. 60380. One body cut mark in the wagon was noticed and an iron rod used in breaking of the wagon was found. A shortage certificate was also produced From the aforesaid evidence the Trial Court came to the conclusion that the rice belonged to railways and that the same was found in unlawful possession of the accused. This finding was arrived at on the basis of the circumstances that the petitioners were found near the wagon containing rice. The Trial Court accordingly held the petitioners guilty of offence under Section 3(a) of the Act and convicted and sentenced each of them to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 1000/- in default to rigorous imprisonment for another 6 months. On appeal, the learned Additional Sessions Judge upheld the conviction. He however, reduced the sentence to a term of rigorous imprisonment for six months each and a fine of Rs.100/- each, in default to suffer rigorous imprisonment for another 15 days. Against the aforesaid judgment of theT Additional Sessions Judge, the present petition has been filed.

(3.) Mr. J.M. Choudhury, the learned Counsel appearing for the petitioners submits that from the evidence on record, the prosecution has not been able to prove that the rice in question was the same rice which was contained in wagon No. 60380. No evidence by the prosecution had been adduced to that effect and inference has been drawn from the mere fact that the wagon in. question, which was found to be cut contained Basmati rice and the rice found to be in possession of the petitioners was also stated to be Basmati rice. According to him, there is no material to justify the aforesaid inference. It is based on pure guess surmises and conjectures. The submission of Mr. Choudhury in fact is that the prosecution has failed to prove at all, not to speak of proving beyond all reasonable doubt that the rice found in the possession of the petitioners was Railway property and in the absence of such proof the conviction cannot be sustained.