Bombay High Court
The State Of Maharashtra vs Shaikh Jafter Abbas & 5 Ors on 11 May, 2017
Bench: Dr. Shalini Phansalkar-Joshi
RJ APEAL 982 OF 2001.odt
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 982 OF 2001
The State of Maharashtra ]
at the instance of Inspector ] Appellant
R.P.F. Lonavala, Dist.Pune ]
V/s.
1. Shaikh Jafar Abbas ]
age: 28 years, Occn. Truck Driver ]
r/o Nigdi, Pune -44 ]
]
2. Ganpat Ambalal Mehata ]
age: 41 yrs. Occn. Business ]
r/o Air India Road, Rupi Ram Chawl Colony]
Mumbai 29. ]
]
3. Gopinath Parmeshwar Acharya, ]
age about 38 years ]
Occn. Service. ]
r/o Railway Quarter No.MH/RBIC/8/Bngla ] Respondents.
Lonavala, Dist.Pune ] Original
] Accused
4. Bijendra Kumar Rambaksha Mehata ] Nos
age: about 50 yrs. Occn.Railway Servant ] 1,2,3, 5 and 6
r/o C.T.F.O. Lonavala ]
Dist.Pune ]
]
5. Keval Krushna Sharma ]
age about 44 years, ]
Occn.Service ]
r/o Nigdi, Dist.Pune-44 ]
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RJ APEAL 982 OF 2001.odt
CRIMINAL APPEAL NO. 131 OF 2002
The State of Maharashtra ]
at the instance of Inspector ] Appellant
R.P.F. Lonavala, Dist.Pune ] .
V/s.
Avinash Vitthal Dharwadkar, ] Accused
age: 42 years, Occn.Railway contractor ] Original
r/o Khambewadi, Block No.1, Kopri Road ] Accused No.4.
Naupada, Thane. ]
Mr. Amit Palkar, APP for the State in both
the appeals.
Mr. Pravin D. Kadam, for respondent in
Criminal Appeal No.131 of 2002.
None for the Respondents in criminal
Appeal No.982 of 2001.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATED : 9th MAY, 2017.
ORAL JUDGMENT :
1] Both these appeals are preferred by the State against one
and the same judgment and order dated 04.06.2001, passed by the
Judicial Magistrate First Class, Railway Court, Pune, in R.C.C. No.70
of 1994. Therefore, they are being decided by this common
RJ APEAL 982 OF 2001.odt
judgment.
2] By Criminal Appeal No.982 of 2001, State is challenging
acquittal of the the respondents for the offence punishable under
Section 3(a) of the Railway Property (Unlawfully Possession) Act,
1966(for short called as, "R.P. U.P. Act"); whereas Criminal Appeal
No.131 of 2002 is preferred by State seeking enhancement of
sentence awarded to accused No.4.
3] Brief facts of the appeals can be stated as follows :-
On 12.2.1994, while P.W.1 R.P.F. Naik- Jamdade was on
duty alongwith his colleague P.W.19 Sonawane, and two others, at
about 6.55 p.m. at Bit No.5/5, they found 20 to 25 persons loading
in one truck iron articles i.e. OHE Poles called as "structures"
belonging to the railway property. On enquiry, these persons failed
to give satisfactory explanation. Out of them, respondent No.1
Shaikh Jafar and respondent No.3 Gopinath Acharya, were from the
railway staff and on enquiries with them, they informed P.W.1 RPF
Naik Jamdade that they were shifting these railway structures from
Lonawala Railway Yard to Kurla Railway Yard where railway work
RJ APEAL 982 OF 2001.odt
was in progress. P.W.1 RPF Nayak - Jamdade, was however, not
satisfied with the explanation and therefore, he produced the said
truck and respondent No.1 Shaikh Jafar and respondent No.3
Gopinath Acharya before P.W.2 RPF Inspector - Rajkumar Agnihotri.
4] P.W. 2 Agnihotri then made enquiry about ownership of
three structures which were loaded in the said truck bearing No.MH-
14/4220. He also found that respondent No.2 Ganpat, who was
alongwith other persons loading the truck on the spot, was unable to
give satisfactory explanation. On further enquiries with them, he was
found that respondent Nos. 4 Bijendra Mehata and 5 Keval Sharma,
who were also serving in railway, in collusion with other
respondents, were helping Accused No.4, who was subsequently
convicted in this case, in carrying out these structures from the spot
of Lonawala Railway yard to Kurla where another work was going
on and claiming double payment. In the course of investigation, at
the instance of accused No.4, some more structures belonging to
railway, totally 19 in number came to be seized under panchnama.
It was also transpired that the wife of respondent No.2 Ganpat
Mehata and wife of respondent No.3 Gopinath Acharya had received
RJ APEAL 982 OF 2001.odt
cheques of Rs.6,000/- and Rs.15,000/-, respectively, towards the
consideration for assisting accused No.4 Avinash Dharwadkar in
committing theft of these railway structures. As a outcome of this
enquiry, P.W.2 RPF Inspector Agnihotri lodged complaint on behalf
of Railway Authorities against respondents and accused No.4, for
offence punishable under Section 3(a) of R.P.U.P. Act, on 30.5.1994,
in the trial Court.
5] On this complaint, the trial Court recorded evidence of
P.W.1 Jamdade and P.W.2 Agnihotri before framing of charge.
Through their evidence, various documents were proved and on the
basis thereof, after satisfying itself that prima face case, has been
made out against respondents and accused No.4, the trial Court
framed charge against them vide Exh.294. All the accused, including
respondents, pleaded not guilty and claimed trial raising defence of
denial and false implication.
6] In support of its case, Railway Authorities examined in all
19 witnesses. Out of them, 7 witnesses, namely, P.W. l6, 7, 8, 15, 19,
20 and 21 were declared hostile and had not supported the
RJ APEAL 982 OF 2001.odt
prosecution case.
7] On appreciation of evidence of remaining witnesses on
record, the trial Court was pleased to hold the guilt of accused No.4
to be proved beyond reasonable doubt and convicted him alone for
the offence punishable under Section 3(a) R.P.U.P Act and sentenced
him to suffer S.I. for six months and to pay fine of Rs.3,000/- in
default to suffer S.I. for one month. As regards remaining accused
the trial Court was pleased to hold that the prosecution has not
proved their guilt beyond reasonable doubt and hence acquitted
them extending such benefit of doubt.
8] This judgment of the trial Court is challenged in this
appeal by learned APP by pointing out that there is consistent
evidence of P.W.1 RPF Nayak Jamdade, fully supported and
corroborated by the evidence of P.W.2 RPF Inspector Agnihotri and
P.W.19 Sonawane, which clearly establishes that the respondents
were found loading in the truck the structures belonging to railway.
It is submitted by learned APP that the respondents were caught raid
handed and prosecution has also established that structures belonged
RJ APEAL 982 OF 2001.odt
to railway. Some of the structures were also recovered at the
instance of original accused No.4 Dharwadkar. No satisfactory
explanation is offered by any of the respondents or even by accused
No.4 for shifting away or taking away structures from the railway
yard to another place. In such situation, according to learned APP,
the trial Court has committed an error in extending the benefit of
doubt to respondents, stating that no chain of circumstance is
established by prosecution against them. According to learned APP,
therefore, the impugned judgment and order of the trial Court is
required to be quashed and set aside holding that respondents are
guilty of the charges framed against them.
9] As regards Appeal No.131 of 2002, it is submitted by
learned APP that though the trial Court has convicted accused No.4,
for the offence punishable under Section 3(a) of R.P.U.P. Act, the
punishment imposed by the trial Court is too meager and
inadequate. It is urged that the punishment prescribed for offence
punishable under Section 3(a) of R.P.U.P. Act is imprisonment for a
term which may extend to five years. It is urged that only in the case
of special and adequate reasons to be mentioned in the judgment,
RJ APEAL 982 OF 2001.odt
such imprisonment can be less than one year. Here in the case, it is
urged that trial Court has not assigned any reasons in the judgment
for imposing imprisonment of six months, which is less than one year
and therefore, according to learned APP, interference is warranted in
the impugned judgment of the trial Court on this count also for
enhancement of punishment to accused No.4.
10] At the outset, it has to be stated that the law relating to
the jurisdiction of the Appellate Court while dealing with the appeal
against acquittal is fairly well settled and crystalized in the plethora
of the judgments of the Apex Court, one of such judgment being in
case of Tota Singh -vs- State of Punjab, A.I.R. 1987 SC 1083. In
this case, the Apex Court was pleased to observe as under :-
"The jurisdiction of the appellate Court, in dealing
with the appeal against the order of acquittal is
circumscribed by the limitation that no interference
is made with the order of acquittal unless the
approach taken by the lower Court to the
consideration of the evidence in the case is vitiated
by some manifest illegality or the conclusion
recorded by the court below is such which could
not have been possibly arrived at by any Court
RJ APEAL 982 OF 2001.odt
acting reasonably and judiciously and is therefore
liable to characterized as perverse. Where two
views are possible on an appraisal of the evidence
adduced in the case and the Court below has taken
a view which is a plausible one, the appellate Court
cannot legally interfere with an order of acquittal
even if it is of the opinion that the view taken by
the Court below on its consideration of the
evidence is erroneous."
11] In another decision with C. Antony -vs- K.G. Raghavan
Nair A.I.R. 2003 SC 182, the Apex Court was further pleased to
observe,
"Though the appellate Court has power to review the
evidence upon which the order of acquittal is passed
still while exercising such an appellate power in a
case of acquittal, the appellate Court is under an
obligation to first come to a conclusion that the
conclusions arrived at by the trial Court for good
reasons are either unreasonable or contrary to the
material on record. In the absence of any such
finding, the High Court could not take a contra view
merely because another view was possible on the
material on record".
RJ APEAL 982 OF 2001.odt
12] In the light of this settled legal position, if this Court
appreciates the evidence on record, it cannot be said that the view
taken by the trial Court is manifestly illegal or perverse so as to
warrant interference therein. It may be true that the evidence on
record goes to prove that respondents were found loading the
railway structures in the truck, as deposed by P.W.1 Jamdade and
P.W.19 Sonawane and at the relevant time, they were also unable to
give satisfactory explanation except for the fact that accused No.4
Dharwadkar, has directed them to take these structures from
Lonawala yard to Railway Yard at Kurla. However, the impugned
judgment of trial Court reveals that Railway had placed order to
supply these various structures at three places namely Kurla,
Lonawala and Kalyan. The documentary evidence is also brought on
record to that effect. As per prosecution case, accused No.4 had
derived pecuniary advantage by supplying the same structures at
these three different places and thereby obtained double payment.
However, so far as the present respondents are concerned, it appears
that they have acted under belief that these structures were
genuinely to be transported from Lonavala Yard to Kurla Yard. There
is nothing on record to show that they were aware about the accused
RJ APEAL 982 OF 2001.odt
No.4 gaining pecuniary advantage by showing the supply of the same
structure at two different places.
13] In paragraph No.49 of the impugned judgment, the trial
Court has also considered the evidence relating to the alleged
cheques issued in the name of Bina Acharya -wife of respondent
No.3 Gopinath Acharya; and in the name of wife respondent No.4
Mehta, and it was found by the trial Court that the prosecution has
not brought sufficient material on record to show that said cheques
were issued by accused No.4 in consideration of the alleged act of
taking away property belonging to Railways. On scrutinizing the
evidence of all the witnesses, the trial Court has found that the
prosecution has failed to establish necessary link connecting to the
respondents for the alleged offence or to the penal act of accused
No.4 and hence the benefit of doubt was extended to respondents
and rightly held guilty accused No.4.
14] In my considered opinion, therefore, such conclusions as
arrived at by the trial Court are based on the appreciation of
evidence on record. Hence, as the view taken by the trial Court
RJ APEAL 982 OF 2001.odt
cannot be characterized as perverse or manifestly illegal, no
interference is warranted in the said view.
15] As regards Appeal No.131 of 2002, which is preferred for
enhancement of sentence imposed on accused No.4, it is true that
section 3(a) of the R.P.U.P. Act prescribes imprisonment for a term
which may extend to five years or with fine or with both and only for
the special and adequate reasons to be mentioned in the judgment,
such imprisonment can be less than one year. In this case admittedly
the trial Court has not assigned any reasons for imposing punishment
of six months which is less than one year. However, taking into
consideration the time of 23 years lapsed between the date of
incident i.e. 12.2.1994 till decision of this appeal, and the fact that
the record does not show any appeal preferred by the accused No.4,
against his conviction, at this stage, it would not be proper to
enhance the said punishment, especially having regard to the
peculiar facts of the case where accused No.4 has raised specific
defence. Hence I do not find any reason, at this stage, to interfere in
the said judgment on this score also, so as to enhance the
punishment imposed on accused No.4.
RJ APEAL 982 OF 2001.odt
16] As a result, both the appeals fail and hence liable be
dismissed. Hence following order.
Order
Both these appeals are dismissed.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
