Bombay High Court
The Sub Inspector, Railway Protection ... vs Shaikh Shabir Shaikh Lal on 23 January, 2024
ALS-15-2023
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 15 OF 2023
The Sub-Inspector,
Railway Protection Force,
Bhusawal Loco, Taluka Bhusawal,
District Jalgaon. ... Applicant
Versus
Shaikh Shabir Shaikh Lal,
Age : 59 years, Occupation: Service,
R.P.O.H. Colony, Bhusawal,
Taluka Bhusawal, District Jalgaon. ... Respondent
[Orig. Accused]
.....
Mr. A. G. Talhar, DSGI for the Applicant.
Mr. Shaikh Nasimoddin Rafiyoddin, Advocate for the Respondent.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 16.01.2024
Pronounced on : 23.01.2024
ORDER :
1. Railway police is hereby seeking leave to file appeal against the
judgment and order passed by JMFC (Railways), Bhusawal dated
25.04.2022 by which present respondent-original accused has been
acquitted from charge under Section 3(a) of the Railway Property
(Unlawful Possession) Act, 1966.
ALS-15-2023
2. Learned DSGI appearing for the applicant would point out that
there is no dispute that present respondent was also an employee of
railway department. That on 20.04.2021, he was found to be leaving
the railway P.O.H. premises carrying copper strip which was property
owned and belonged by railway. He was spotted by complainant
taking away railway property and therefore he was questioned. He
could not offer explanation for its possession and therefore complaint
was filed. Learned DSGI pointed out that in support of its case,
prosecution had adduced evidence of complainant which was cogent
and reliable. Spot panchanama was drawn. Moreover, accused
respondent had admitted and confessed about committing the
offence. The property was owned by railway and therefore with such
evidence, conviction ought to have been recorded. However,
according to him, learned trial Judge has, by its order dated
25.04.2022, acquitted the respondent. He pointed out that there is
total non-application of mind and improper appreciation of evidence.
The findings and conclusion reached are patently erroneous and
therefore applicant has a strong case on merits and hence he seeks
leave to prefer appeal.
ALS-15-2023
3. In answer to above, learned counsel for respondent pointed out
that prosecution has miserably failed to establish the charges. He
pointed out that there is no cogent and reliable evidence. At the
outset, he invited attention of this court to the complaint wherein
mere suspicion was raised. He further submitted that there is no
expert's evidence to show that the so called property in possession of
respondent-accused was railway property. He invited attention of this
court to the evidence of prosecution witnesses and submitted that
when prosecution had failed to show that property belonged to only
and only railway, learned trial Judge committed no error in refusing
the case of prosecution. According to him, more particularly there is
no independent evidence except so called confessional statement
which has no evidentiary value. Hence, he prays to dismiss the
application seeking leave.
4. After hearing submissions advanced by both sides and on going
through the impugned judgment, it transpires that present respondent
was made to face trial before learned JMFC, Railway Court, Bhusawal
for offence punishable under Section 3(a) of the Railway Property
(Unlawful Possession) Act, 1966.
ALS-15-2023
5. In above background, if the evidence adduced by prosecution in
the trial court is seen, there is evidence of complainant who deposed
that on 20.04.2021, he found respondent in suspicion condition and
was found possessing copper strip. He had no permit for the same and
therefore it was said to be a stolen property and on suspicion this
witness passed information to superior officer and thereafter lodged
complaint.
6. Perused the evidence as well as impugned judgment. At the
outset it needs to be observed that from the very complaint it is
evident that accused himself is a staff and employee of railway
department. There is no evidence as to what was he working as and
what were his duties and responsibilities. Secondly, complaint is
apparently on suspicion. There is no record of inventory to show that
property alleged to be in possession of accused in fact was belonging
to railway department. There is no independent oral or documentary
evidence in that regard. Unless it is established that said property was
owned and possessed by railway department, it cannot be said that
the property allegedly found in possession of accused was of railway
and was stolen.
ALS-15-2023
7. It also further appears that though there is certification dated
13.05.2021, PW3 himself seems to have admitted that the property
found with accused was thrown away as scrap. Therefore, all such
circumstances create doubt. Case does not seem to have been proved
beyond reasonable doubt. Mere confessional statement, as put forth
by learned counsel for applicant cannot be considered in isolation and
moreover in absence of other incriminating material.
8. Resultantly, in the light of above discussion, no fruitful purpose
would be served by permitting applicant to file appeal. No case being
made out for grant of leave, the application is rejected.
[ABHAY S. WAGHWASE, J.]
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