ASHOK SAH @ MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision application is directed against the judgment dated 7th April, 2000 passed by 3rd Additional Sessions Judge, Samastipur in Cr. Appeal No. 31 of 1990 whereby the appellate Court confirmed the judgment of the trial Court dated 23rd March, 1990 passed by the SDJM. Samastipur in R.P.F. Case No. 4 of 1980/Tr. No. 801 of 1990.

(2.) As alleged, certain railway properties were seized from the shop of petitioner Ashok Sah on the confessional statement of co-accused Ram Chandra Sah who was caught redhanded while carrying away certain railway properties. The seizure-list of the articles so seized (Ext. 4) was prepared and the revisionist was put on trial and was convicted for offence punishable under Section 3 of the R.P. (U.P.) Act and he was sentenced to undergo RI for three years. The appellate Court, after taking into consideration the evidence on the record upheld the order of conviction and sentence.

(3.) It has been submitted by the revisionist's lawyer that at the time of seizure, one Sumitra Devi was present and she claimed to be the wife of one Ram Bilas Sah, the owner of the shop in question. The revisionist was simply described to be a Munshi of the aforesaid shop by DW 4 Sumitra Devi. Affidavits of Sumitra Devi and Raj Kumar Sah, one of the witnesses to the seizure list (Ext. 4) were also filed (Ext. D & E) to support the fact that the revisionist Ashok Sah is not the owner of the shop from which the incriminating article belonging to the railway were seized. Ext. 4 shows that on interrogation from persons who gathered at the time of seizure, the seizing authority learnt that the shop in question was that of Ashok Sah and Ram Chandra Sah had also made confessional statement that he had sold certain property of the railway to Ashok Sah and at his confessional statement, the recovered articles were seized. Since Sumitra Devi was an interested person, her husband being accused, she was bound to give a statement contrary to the case of the prosecution in order to save her husband. If Ram Bilas Sah were her husband, it was incumbent on the part of Sumitra Devi to produce her husband to state that he was the husband of DW 4 and not Ashok Sah. Moreover, this affidavit was sworn before the Oath Commissioner of Samastipur and it was not established that the concerned Oath Commissioner was still holding authority to administer oath to any body at the relevant time. Moreover, when a property is seized and it is established that the seized property is that of the railway, under the R.P. (U.P.) Act, the onus shifts to the accused to establish that the property is not that of the railway and that he is not the person in possession of the property. So it was the onus of accused to establish by reliable and convincing evidence that he is not the owner of the shop in question. The affidavits and the evidence of DW 4, an interested person was not sufficient.