Gudipudi Prakash Babu S/O Babu ... vs The State Of A.P.,
2023 Latest Caselaw 1668 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CRIMINAL REVISION CASE No.276 of 2014

ORDER:

This Criminal Revision Case under Sections 397 and 401

Cr.P.C. is filed by a convict/A.1 questioning the judgments of

the Courts below.

2. On the complaint lodged by the Assistant Sub-Inspector,

Railway Protection Force (RPF), Electric Loco Shed, Vijayawada

in C.C.No.157 of 2011 two accused/A.1 and A.2 were tried by

learned II Metropolitan Magistrate for Railways, Vijayawada and

they were found guilty by a judgment dated 08.04.2013 and

each of them was convicted and sentenced to pay a fine of

Rs.1,500/- with a default sentence of simple imprisonment for

six months.

3. As against that judgment, A.1 alone preferred appeal in

Criminal Appeal No.110 of 2013. After due hearing, learned

Metropolitan Sessions Judge, Vijayawada by a judgment dated

17.01.2014 found no merit in the appeal and dismissed it and

thereby confirmed the judgment of the trial Court.

4. It is against that judgment, this revision is filed by the

convict/A.1.

Dr. VRKS, J Crl.R.C.No.276 of 2014

5. The revision petitioner was a Technician Grade-II, Electric

Loco Shed, Vijayawada. He works in E-4 Section. The essential

allegation against him was that he was found in possession of

railway property and on interrogation and investigation it was

found that he had earlier stolen some more property of the

railways and sold it to A.2 and in pursuance of his confession

A.2 was arrested and from him also information was elicited

that he received stolen property and sold it and therefore the

sale proceeds were recovered from him. Since these allegations

were proved the accused were convicted. It is against that the

following grounds are urged in this revision:

1. MOs.1 and 2 which are claimed to be the railway property do not bear any distinct railway marks which fact was also admitted by witnesses.

2. To remove items such as MOs.1 and 2 even for a technically skilled person it takes 15 minutes time to remove them and there were 55 employees working around the accused and it was impossible to commit theft of them without being noticed.

3. To prove the seizure or of stolen property no independent witness was examined by prosecution.

Dr. VRKS, J Crl.R.C.No.276 of 2014

4. All the witnesses examined belonged to the railways and they are interested witnesses.

5. At the work place there were guards to check the employees and none of the guards was examined.

6. Prosecution evidence did not establish any nexus between A.1/revision petitioner and A.2.

7. Presumptions under Section 114 of the Indian Evidence Act could not be applied in the case.

8. Both the Courts below erroneously appreciated the evidence, reached to incorrect conclusions, and there was no evidence proving the guilt of the revision petitioner beyond reasonable doubt?

6. During the course of hearing arguments, learned counsel

appearing for revision petitioner argued only one point stating

that what was particularly recovered from this revision

petitioner was scrap and scrap had no value and convicting the

revision petitioner for theft of such property is incorrect.

7. Learned Special Assistant Public Prosecutor represented

the respondent-State and urged that both the Courts below

properly analysed the evidence and reached to appropriate

conclusions and the grounds urged in the revision contain

Dr. VRKS, J Crl.R.C.No.276 of 2014

contentions that were negatived by both the Courts below and

revision has not shown anything for exercise of revisional

jurisdiction by this Court. He sought for dismissal of the

revision.

8. The point that falls for consideration is:

"Whether the judgments of the Courts below suffer

from illegality, irregularity or impropriety requiring

interference?"

9. Point:

At the trial, prosecution examined PWs.1 to 6 and got

marked Exs.P.1 to P.15 and produced material objects as per

MOs.1 to 3. As the record indicates there was pre-charge and

post-charge evidence that was recorded by the learned trial

Court. Althroughout the accused were given opportunity to

represent their case and they were furnished with all the copies

of documents. They have always been assisted by their learned

counsel. They were permitted to cross-examine the witnesses

and they were permitted to adduce defence evidence. Their

pleas were recorded for the charge and their explanations were

Dr. VRKS, J Crl.R.C.No.276 of 2014

recorded as against the incriminating material available on

against them. Their arguments were heard and considered.

This revision has not questioned the competency of the Courts

below in trying the case or in hearing the appeal and this

revision has not questioned the procedure adopted by the trial

Court and the appellate Court. Thus, on these aspects there is

no point to be decided in this revision.

10. The entire contention of the revision petitioner is hinged

on evidence and its appreciation. The judgment of the learned

appellate Court discloses perfect narration of facts and

consideration of each piece of evidence and whether such

evidence was believable or not and it perfectly considered each

contention raised by the defence and the evidence so evaluated

in the context of such contention and finally it concluded that

the guilt of this revision petitioner was proved beyond

reasonable doubt and trial Court properly recorded its findings

and the learned appellate Court found nothing incorrect on

facts or in law and therefore, dismissed the appeal. It is that

well considered and elaborate judgment of the learned

Metropolitan Sessions Judge that is under challenge here.

Dr. VRKS, J Crl.R.C.No.276 of 2014

11. This Court has gone through the material on record. It

discloses that there has been constant missing of railway

property in the loco sheds. On 19.01.2011 there was Ex.P.1-

theft report and that relates to theft of certain items in E-3

Section. On 14.03.2011 there was Ex.P.9-theft report and that

refers to theft of railway property from E-4 Section. Between

these two days it was on 26.02.2011 at about 3:40 P.M. this

revision petitioner was arrested by PW.1 who was the Assistant

Sub-Inspector/RPF/ELS/VJA. The revision petitioner was

found carrying a polythene carry bag containing railway brass

transformer palm clamp/MO.1. Evidence show that he was

coming from his work place and was found going towards

Nynavaram level crossing gate and near the new fly over bridge

he was caught. Ex.P.12-muster particulars and the evidence of

Senior Section Engineer/PW.5 was considered by both the

Courts below and from that evidence a finding of fact was

recorded that at the relevant time this revision petitioner

attended his office and attended his duties. Thus, his physical

presence at the relevant place was found proved. On recovering

MO.1 the first question that was to be confirmed by the

investigating agency was to find out whether it was railway

Dr. VRKS, J Crl.R.C.No.276 of 2014

property or not? Both the Courts below examined the evidence

of PW.5 who was Senior Section Engineer for 20 years and was

superior in rank to the revision petitioner and his Ex.P.13

certification and held that what was found in possession of this

revision petitioner was the railway property. That aspect of the

matter is challenged here. Revision petitioner contends that on

MO.1 there were no distinct marks indicating it was railway

property and therefore, the findings recorded against him are

incorrect. One has to see the definition of railway property

provided by Section 2(d) of the Railway Property (Unlawful

Possession) Act, 1966 (for short, 'the Act, 1966). It is extracted

here:

"2(d): "Railway property" includes any goods, money or valuable security or animal, belonging to, or in the charge or possession of, a railway administration."

12. This definition indicates that any property that was under

the charge or possession of the railway administration is railway

property. Entire trial does not indicate and the grounds urged

in the revision also do not indicate this revision petitioner ever

contending that it was his own property and that he procured it

elsewhere and he was innocently carrying it and he was

Dr. VRKS, J Crl.R.C.No.276 of 2014

unnecessarily booked for the offence. Both the Courts below

have referred to the evidence of the technical expert/PW.5 and

held that MO.1 is such item which was specifically

manufactured for railway purpose and such property is not

available for sale elsewhere. Why that evidence should not be

believed is to be shown by the revision petitioner. Defence did

not show that items like MO.1 are available in open market.

Defence did not show that MO.1 was not in possession or

charge of railway administration. It is in that context of the

matter the finding of the Courts below that MO.1 was railway

property is unexceptionable.

13. PW.1 the Assistant Sub-Inspector having caught this

revision petitioner and having found with him MO.1

immediately summoned two mediators which include PW.3.

Revision petitioner contends that there is no independent

evidence in proof of possession of MO.1 with him and seizure of

MO.1 from him. Both the Courts below have recorded that

PW.3 is a private electrician and he is not employed in any

manner by the railway administration. Nothing contrary is

shown by the defence. Thus, it is very much clear that PW.3 is

a neutral and independent individual. In his evidence he stated

Dr. VRKS, J Crl.R.C.No.276 of 2014

possession of MO.1 by this revision petitioner. The evidence of

PWs.1 and 3 was believed by the Courts below. The act of

seizure was recorded in the Mahazar. What was seized was

enlisted and that list was served on the accused and this

revision petitioner in turn gave Ex.P.4 acknowledgment also.

His signature on it was never denied. Thus, based on

independent evidence both the Courts below arrived at

appropriate conclusions.

14. The contention of the revision petitioner that theft of

MO.1 or other articles would take at least 15 minutes time to

remove them and in the presence of about 55 other employees it

was never possible to commit theft without being noticed by

others. This contention was elaborately considered by the

learned trial Court and it held that this revision petitioner

himself is a technician and when he is working nobody would

suspect that he was not working and was committing theft and

therefore, any of his colleagues not complaining about theft was

quite possible because no one could have ever suspected the act

of thieving on part of the revision petitioner. In the given facts

and circumstances, the reasoning of the trial Court is apt and it

Dr. VRKS, J Crl.R.C.No.276 of 2014

is based on evidence. Therefore, the contention of the revision

petitioner has no basis.

15. Revision petitioner castigates all prosecution witnesses as

interested witness. Most of them working in railways. It is

based on that this contention is raised. Be it noted, revision

petitioner himself is a co-employee along with prosecution

witnesses. Absolutely no facts and circumstances were brought

on record to show that any of these prosecution witnesses had

any grouse or animosity against this revision petitioner.

Therefore, none of them could be called as partisan or interested

witnesses. Therefore, this contention is negatived.

16. Revision petitioner contended that there were guards at

E-4 and E-3 and other sections and had he been carrying

railway property they could have certainly noticed and therefore,

the evidence of guards should have been produced at the trial

and for their non-examination adverse inference shall be drawn.

This aspect was considered by both the Courts below and the

learned appellate Court after elaborate discussion held that as

per the evidence there were various ways through which the

employee could come out unnoticed by any of the guards and

Dr. VRKS, J Crl.R.C.No.276 of 2014

therefore it found no merit in this contention. In this revision

the learned counsel has not shown how such observation of

learned Sessions Judge could be considered as incorrect. It is

relevant to notice Section 3 of the Act, 1966:

"3. Penalty for unlawful possession of railway property:- Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable-"

17. The above provision makes it clear that once prosecution

has established possession of railway property by the revision

petitioner, it was for the revision petitioner to explain how he

had come to possess such property in a lawful manner. On this

aspect there has been utter silence on part of the revision

petitioner. Therefore, in this revision the only contention

argued for him by the learned counsel is that the alleged theft

was an article of scrap and has no value and therefore, he

should not have been punished. There is absolutely no merit in

this contention. That MO.1 has no value is a question of fact

which, as the revision petitioner is contending, he should have

brought some material on record to sustain it. He did not do it

Dr. VRKS, J Crl.R.C.No.276 of 2014

at any stage of the case. It is not for him to say that it has no

value as long as it never belonged to him. Whether the item

that was found in possession of him was of value or no value it

amounts to theft as long as it was an item that was possessed

by the railway administration and was removed by this revision

petitioner without any lawful excuse or explanation. Therefore,

this contention has no merit and is negatived.

18. The contentions concerning nexus between A.1 and A.2

and other aspects do not fall for consideration in this revision

since irrespective of any such aspects the guilt of this revision

petitioner was found by both the Courts below for committing

theft of MO.1. MOs.2 and 3 were recovered from A.2. That A.2

was punished and he complied with the punishment.

Therefore, no more discussion is required on these aspects.

19. Learned counsel for revision petitioner submits that

subsequent to the convictions recorded by the Courts below this

revision petitioner was terminated from service and the sentence

of fine of Rs.1,500/- should not have resulted in such

Dr. VRKS, J Crl.R.C.No.276 of 2014

termination and cited Pawan Kumar v. State of Haryana1.

That was a case of pleading guilty for the offence under Section

294 I.P.C. by a Government servant resulting in his termination

from service. His suit in Civil Court challenged such

termination. All the Courts below dismissed the contention.

Hon'ble Supreme Court of India decreed the suit. Their

Lordships dealt with the concept of Summary Trials, pleading

guilty to offences alleged and absence of facts and reasons in

the registers of Courts in summary trials and the concept of

'moral turpitude' concerning service matters. Finally their

Lordships were pleased to draw the attention of Parliament to

consider and take steps that punishments upto a fine of

Rs.2,000/- on conviction may not be considered as conviction at

all for any purpose for entry into and retention in Government

service.

20. On considering the submission of the learned counsel for

revision petitioner and the above ruling, it is to be stated that it

is for revision petitioner to take the help of the cited ruling

before his employer and not here as the case at hand is not

1 (1996) 4 SCC 17

Dr. VRKS, J Crl.R.C.No.276 of 2014

about termination of his service but about commission of theft

of Railway property.

21. In the result, the Criminal Revision Case is dismissed

confirming the conviction and sentence recorded against the

revision petitioner/A.1 in the judgment dated 17.01.2014 of

learned Metropolitan Sessions Judge, Vijayawada in Criminal

Appeal No.110 of 2013 and the judgment dated 08.04.2013 of

learned II Metropolitan Magistrate for Railways, Vijayawada in

C.C.No.157 of 2011.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 24.03.2023 Ivd

Dr. VRKS, J Crl.R.C.No.276 of 2014

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.276 of 2014

Date: 24.03.2023

Ivd