Jharkhand High Court
Bodha Yadav Son Of Jitu Yadav vs The State Of Jharkhand on 4 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 541 of 2013
1. Bodha Yadav son of Jitu Yadav
2. Muneshwar Bhuiyan son of Kaltu Bhuiyan (Deleted vide
order dt. 08.03.2021)
Both residents of village-Lawagarh, P.O. & P.S. -Manika,
District-Latehar ... ... Petitioners
Versus
The State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner No.1 : Mrs. Swati Shalini, Amicus Curiae
: Mr. J.S. Singh, Advocate
For the State : Mrs. Vandana Bharti, A.P.P.
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Through Video Conferencing
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C.A.V. on 05.04.2021. Pronounced on 04.06.2021
1. Heard Mrs. Swati Shalini, the learned Amicus Curiae
appearing on behalf of the petitioner alongwith Mr. J.S. Singh, the
learned counsel on record for the petitioner.
2. Heard Mrs. Vandana Bharti, learned A.P.P. appearing on
behalf of the Opposite Party-State.
3. The present criminal revision application is directed against
the Judgment dated 22.08.2000 passed in Criminal Appeal No. 168
of 1997 by the learned Sessions Judge, Palamau at Daltonganj
upholding the judgment of conviction and the order of sentence
dated 12.09.1997 passed in R.P. Case No. 74 of 1992, T.R. No. 282
of 1997 (arising out of R.P.F. Post Patratu Case No.39/1992) by the
learned Railway Judicial Magistrate, Daltonganj (Palamau),
whereby the petitioners were convicted under Section 3 of the
Railway Property (Unlawful Possession) Act, 1966 (hereinafter
referred to as the aforesaid Act of 1966) and were sentenced to
undergo rigorous imprisonment for one year under the said
Section.
4. During the pendency of the present revision petition, the
petitioner No. 2 Muneshwar Bhuiya expired and accordingly, his
name has been deleted vide order dated 08.03.2021. Accordingly,
the present criminal revision petition is confined to the Petitioner
No.1 namely, Bodha Yadav only.
5. Learned Amicus submitted that the impugned judgments
are fit to be set aside in view of the fact that while recording the
confessional statement of the Petitioner No.1, the provisions of the
Railway Protection Force Crime Manual has not been satisfied,
inasmuch as, the confessional statement of the accused including
Petitioner No. 1 was not recorded in presence of two independent
witnesses. However, she did not dispute the fact that the
confessional statement was recorded before the enquiry officer
who is not a police officer and accordingly, the confessional
statement cannot be said to be inadmissible in law.
6. She further submitted that there is no independent witness
to the seizure and the seizure had taken place in the morning at
the railway platform and there is no explanation as to why no
independent witness was sought for to make the seizure. She
submitted that the seizure witness is an interested witness and
therefore, the conviction of the Petitioner No. 1 cannot be
sustained in the eyes of law. She referred to Clause 26 of the
Railway Protection Force Crime Manual. Learned Amicus also
relied upon a judgment reported in 2017 SCC OnLine Bom 8147
passed in Criminal Appeal No.45 of 2001 (Union of India Vs.
Mohomad Harun) decided on 01.09.2017.
7. Learned counsel for the Petitioner No.1 Mr. J.S. Singh
additionally submitted that admittedly, the present offence is the
first offence of the Petitioner No.1 for which he has been
convicted, but the learned courts below refused to give him the
benefit of Section 360 of Cr.P.C. He further submitted that
considering the facts and circumstances of this case, the sentence
of the Petitioner No.1 may be modified to some extent due to the
fact that in the year 1997, when the Petitioner No. 1 was convicted,
he was 35 years of age and the offence is of the year 1992 and the
present age of the Petitioner No. 1 is more than 59 years. Learned
counsel further submitted that at the stage of trial, the Petitioner
No. 1 had remained in custody for 15 days and at the revisional
stage, he has remained in custody from 24.04.2013 to 11.07.2013
and thus, the custody of the Petitioner no. 1 in relation to the
present case is about 3 ½ months. Learned counsel submitted that
around 29 years have passed from the date of incident and
therefore, some sympathetic view may be taken and sentence be
modified to fine only. He referred to Section 3(a) of The Railway
Property (unlawful Possession) Act, 1966 to submit that as per
Section 3 (a) of The Railway Property (Unlawful Possession ) Act,
1966, when the offence is the first offence, it is open to the court to
punish the convict with imprisonment for a term which may
extend to 5 years or with fine or with both and in absence of
special and adequate reasons to be mentioned in the judgment of
the court, the imprisonment shall not be less than one year and
such fine shall not be less than Rs.1,000/-.
Arguments on behalf of the Opposite Party-State
8. Learned counsel appearing on behalf of the Opposite Party-
State submitted that considering the nature of offence, the
Petitioner No.1 is not entitled to benefit of Section 360 of Cr.P.C..
However, during the course of argument, she did not dispute the
fact that as per the provisions of Section 3 of the Railway Property
(Unlawful Possession) Act, 1966, for the first offence, there is a
provision for imprisonment for a term which may extend to 5
years, or with fine, or with both and in absence of special and
adequate reasons to be mentioned in the judgment of the court,
such imprisonment shall not be less than one year and such fine
shall not be less than Rs.1,000/-.
Findings of this Court
9. As per the prosecution case on 29.11.1992, Railway
Protection Force personnel of Patratu Post, raided the platform of
Latehar Railway Station from 08.00 AM to 09.30 A.M. and in
course of raid, 132 Down Passenger train reached at Platform No.
1 and from that train, some passengers unloaded some gunny bags
containing coal and tried to flee away. The Raiding Party chased
them and succeeded in apprehending two persons who were
carrying gunny bags on their head. They were found carrying 7
numbers of brake blocks. The accused Bodha Yadav (Petitioner
No. 1) was found in possession of 3 (three) numbers of railway
brake blocks, whereas the co-accused was found in possession of 4
(four) numbers of railway brake blocks. It was also alleged that 86
bags containing 25 kgs of coal in each were also seized from
Platform No. 1. The Raiding Party seized all the properties at the
spot after preparing a seizure list. The apprehended persons
including the present Petitioner No.1 alongwith the railway
properties were produced before the R.P.F. Post, Patratu, where
S.I., Railway Protection Force submitted his report, on the basis of
which, a case under Section 3 of the aforesaid Act of 1966 was
registered. Another S.I. was entrusted with the work of enquiry. In
course of enquiry, he recorded confessional statements of two
persons including the present Petitioner No.1 which were
exhibited as Exibits-8 and 8/A. He also got the railway property
examined by the Expert and thereafter, submitted prosecution
report which was marked Exhibit-7 before the learned Court
below.
10. In course of trial, the prosecution examined 4 witnesses to
prove its case. P.W.-1 M.K. Bhattacharya is the expert who had
examined the railway property. P.W.-2 S.N. Dhar, although was
examined, but did not turn up for cross-examination after charge
and accordingly, his evidence was not considered by the learned
trial Court and P.W.-3 is Shiv Bihari Singh who was the witness to
the seizure and was also one of the members of the raiding party.
He has fully supported the prosecution case and submitted that on
29.11.1992 at about 8 a.m., the raiding party of Railway Protection
Force personnel checked passenger train standing at Latehar
Railway Station and in course of it, two persons were
apprehended. One of whom was the present Petitioner No. 1 who
was carrying railway property. A seizure list was prepared on the
spot with regard to railway brake blocks recovered from the
apprehended persons and he exhibited his signature as Exhibit
2/A on the seizure list. This witness was thoroughly cross-
examined from the side of the defence. He also stated that for the
identification of the seized article, a label was affixed and he had
signed on the label. He identified the seized articles as well as his
signature. During his cross-examination, he stated that he had
seen the two accused while getting down from the train and
taking down the brake blocks. He denied the suggestion of false
implication of the accused persons. The learned trial court held
that the evidence of P.W.-2 was of no use as he had not appeared
for his cross-examination.
11. The Enquiry Officer of the case has been examined as P.W.-4,
who had recorded the statement of the witnesses and had
inspected the place of occurrence and had also recorded the
confessional statements of the two accused persons including that
of Petitioner No.1. P.W.-1 is the expert witness who had examined
the seized railway property and, in his evidence, he has stated that
on 24.12.1992, he had examined the brake blocks and had found
the same to be railway property. The report was marked as
Exhibit-1. The prosecution report was marked as Exhibit-7.
12. This Court finds that the prosecution witnesses were
thoroughly cross-examined by the defence and there was no
material to suggest any false implication of the accused at the
hand of the official witnesses. After considering the materials
available on record and after considering the arguments advanced
on behalf of the parties, the learned trial court i.e., the Railway
Magistrate, Daltonganj (Palamu), vide judgment dated 12.09.1997,
convicted the Petitioner No. 1 and the co-accused under Section 3
of the aforesaid Act of 1966 after holding that the prosecution has
been able to prove the case against them beyond all reasonable
doubt. The learned trial court also recorded that no evidence, oral
or documentary, was filed from the side of the defence and the
defence was in total denial of the incident. The learned trial court
was of the view that considering the nature of offence, the convicts
were not entitled to the benefit of Section 360 of Cr.P.C. and
sentenced them to undergo rigorous imprisonment for one year.
13. The learned appellate court also considered all the evidences
available on record and found that the convicts were found in
possession of railway property without any valid authority and
found no reason to interfere with the findings arrived at by the
learned trial court and also recorded that there is no specific
defence from the side of the convicts and there is only vague and
general denial about the occurrence. The learned appellate court
also found that the learned trial court had awarded minimum
sentence prescribed under the Act which is one year and there was
no special and adequate reason for reducing the sentence awarded
to the convicts and accordingly, the learned appellate court
dismissed the criminal appeal.
14. The learned amicus curiae while advancing her arguments
referred to Railway Protection Force Crime Manual to submit that
the confessional statement of the convicts including Petitioner
No.1 having not been recorded in presence of two independent
witnesses, the same could not have been relied upon for the
purposes of convicting the accused. However, during the course of
arguments, she did not dispute that the railway protection force
officer was entitled to make an enquiry under the aforesaid Act of
1966 and the officer under the said Act is not a police officer for
the purposes of Section 25 of the Indian Evidence Act and the
confessional statements recorded by him is admissible in evidence.
The main contention of the learned amicus curiae is that the
railway protection force official had not followed the manual,
inasmuch as, there were no independent witnesses to the
confessional statements.
15. This Court finds that it is not in dispute that the person who
had made enquiry for the purposes of recording the confessional
statements of the accused in the present case was an officer of
Railway Protection Force and the confessional statements recorded
by him are admissible in evidence. This Court also finds that
admittedly, the person who had recorded the confessional
statement has appeared as witness before the learned trial court as
P.W.-4 and he deposed that the two accused persons had
confessed their guilt before him and he had recorded the
confessional statements of the accused and had submitted the
enquiry report under his signature. He exhibited the confessional
statements of the accused-persons as Exhibits-8 and 8/A. This
witness was thoroughly cross-examined by the defence, but his
evidence remained consistent.
16. This Court further finds that merely because certain
procedure regarding independent witnesses to the confessional
statements were not followed, the same by itself is not fatal to the
prosecution case, particularly in view of the fact that the
confessional statements of the accused were not the sole evidence
to convict them. Apart from that, the officer who has seized the
railway property from the possession of the accused, has also fully
supported the prosecution case and was also thoroughly cross-
examined. There is no evidence or material to suggest any reason
for false implication of the accused persons and accordingly, there
is no reason to discard the evidence of the official person of
Railway Protection Force. The defence has also not taken any
objection to the confessional statements which were marked as
Exhibits-8 and 8/A without any objection from the side of the
defence and this is coupled with the fact that the person before
whom they had confessed their guilt and the person who had
recorded their confessional statements had himself appeared and
fully supported the prosecution case regarding the confession of
the accused which was recorded by him and he exhibited the
confessional statements.
17. The learned amicus curiae also argued that there was no
independent witness to the seizure and seizure had taken place in
the morning at railway station platform. This Court is of the
considered view that merely because there was no independent
witness to the seizure that by itself is not fatal to the prosecution
case, particularly when one of the official witnesses was a witness
to the seizure and he had deposed before the learned Trial Court
and supported the prosecution case and he has also been
thoroughly cross-examined. The scope of revisional jurisdiction is
very limited.
18. The learned Amicus has also relied upon the judgment
passed by Hon'ble Bombay High Court, in Criminal Appeal No.
45 of 2001 [The Union of India through Railway Protection Force,
Akola -Versus- Mohomad Harun], reported in (2017) SCC OnLine
Bombay 8147, decided on 01.09.2017 and has referred to Paras 10,
11 and 12 which reads as under: -
"10. There is certainly some substance in the contentions raised
by the learned Counsel for the respondent. In this regard it would
be advantageous to go through the provisions regarding the
enquiry into offences under the Railway Property
(Unlawful Possession) Act, 1966. The Clauses 14 and 14(1) of the
procedure required to be followed for conducting enquiries into
offences under the Railway Property (Unlawful Possession) Act
are as under: --
"14 - The Enquiry Officer shall then examine orally
(interrogate) the person so summoned, concerning the
facts and circumstances of the case and record any
statement made to him by such person, which will form
a part of the case record.
14(i) If the accused wants to make a confessional
statement, the same should be recorded in the presence of
two respectable and independent witnesses who should
also be required to affix their signatures thereon. He
should also be produced before a Magistrate of
competent jurisdiction and the confession shall be
recorded by such Magistrate as required by
the provisions of the Code of Criminal Procedure, 1973
(Section 164 and 281)."
11. On plain reading of the above said provisions, the procedure
required to be followed for conducting enquiry into the offences
under the Railway Property (Unlawful Possession) Act, it is clear
that the Enquiry Officer is required to interrogate the accused, in
concern with the facts and circumstances of the case and then
record the statement made by the accused. Similarly, if the accused
wants to make a confessional statement, it should be recorded in
the presence of two respectable and independent witnesses, who
should also be required to affix their signatures thereon. The
accused should be produced before the Magistrate of competent
jurisdiction and the confession should be recorded by such
Magistrate, as required by the provisions of Sections 164 and 281
of the Code of Criminal Procedure.
12. In the instant case, even assuming that, the Railway Protection
Force authority has recorded the confessional statement of the
accused respondent, the said confessional statement has not been
recorded as contemplated under the Clauses 14 and 14(1)
regarding the procedure required to be followed for conducting
enquiries into offences under the Railway Property (Unlawful
Possession) Act. The learned trial Judge has rightly come to the
conclusion that the said confessional statement of the accused has
not been recorded in the presence of two independent witnesses."
19. The aforesaid Judgement does not apply to the facts and
circumstances of the present case. This Court finds that in the said
case, as is apparent from Para-13 of the judgment, it has been
recorded that as far as seizure of property is concerned, apart from
the bare testimony of P.W.-1 of the said case, who was Railway
Protection Force official, there was absolutely no iota of evidence
to show that one brake block was found with the accused and the
pancha witnesses who were examined did not support the case
and had turned hostile. It is also recorded that P.W.-2 of the said
case had not received the shortage memo about the property and
in absence of any convincing evidence, the Hon'ble Court was of
the view that it was difficult to come to the conclusion that the
property which was allegedly stolen by the accused of the case
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belongs to the Railway Department and was consequently of the
view that the prosecution had not proved the case beyond all
reasonable doubt.
20. This Court finds that in the aforesaid judgment, the Hon'ble
Bombay High Court in appellate jurisdiction had considered the
materials on records and after scrutinizing the same, was of the
view that the prosecution was not able to prove the case that the
seized property was stolen by the accused and it belonged to
Railway Department.
21. This Court finds that in the present case, both the learned
courts below have scrutinized the evidence on record and have
returned consistent findings of facts regarding seizure of railway
property from the possession of the Petitioner No.1 and for which
the Petitioner No.1 did not give any explanation about its
possession and accordingly, the learned courts below convicted
the petitioner and the co-accused under Section 3 of the aforesaid
act of 1966.
22. Upon perusal of Section 3 of the aforesaid Act of 1966, it is
clear that whoever is found in possession of any railway property
reasonably suspected of having been stolen or unlawfully with
him shall, unless he proves that the railway property came into his
possession lawfully, is to be punished in terms of the said Section.
In the present case, the property seized from the Petitioner No.1
and the co-accused was seized at the railway station while they
were trying to flee away after getting down from the train. The
property was found to be railway property by the expert and the
accused did not give any explanation whatsoever regarding its
possession and accordingly, they failed to discharge their onus as
contemplated, under Section 3 of the aforesaid Act of 1966, which
clearly provides that the accused is required to prove that the
railway property came into his possession lawfully. The accused
on one hand did not give any explanation regarding possession of
the railway property and on the other hand did not lead any
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defence evidence and were in total denial of the allegations
levelled against them.
23. The Hon'ble Apex Court has explained the power of
revisional court in the case of Jagannath Choudhary and others
reported in (2002) 5 SCC 659 at para. 9 as under:
"Incidentally the object of the revisional jurisdiction as
envisaged u/s 401 was to confer upon superior criminal
courts a kind of paternal or supervisory jurisdiction, in
order to correct miscarriage of justice arising from
misconception of law, irregularity of procedure, neglect of
proper precautions of apparent harshness of treatment
which has resulted on the one hand in some injury to the
due maintenance of law and order, or on the other hand in
some underserved hardship to individuals. (See in this
context the decision of this Court in Janata Dal Vs. H.S.
Chowdhary). The main question which the High Court has
to consider in an application in revision is whether
substantial justice has been done. If however, the same has
been an appeal, the application would be entitled to
demand an adjudication upon all questions of fact or law
which he wishes to raise, but in revision the only question
is whether the court should interfere in the interests of
justice. Where the court concerned does not appear to have
committed any illegality or material irregularity or
impropriety in passing the impugned judgment and order,
the revision cannot succeed. If the impugned order
apparently is presentable, without any such infirmity
which may render it completely perverse or unacceptable
and when there is no failure of justice, interference cannot
be had in exercise of revisional jurisdiction."
24. The revisional power has been further explained in the case
of Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at
Para-13 as follows:
"It is well settled that revisional interference may be
justified where:
(i) the decision is grossly erroneous.
(ii) there is no compliance with the provisions of law.
(iii) the finding of fact affecting the decision is not based on
evidence.
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(iv) material evidence of the parties is not considered and
(v) judicial discretion is exercised arbitrarily or perversely."
25. In view of the aforesaid discussions and findings and
considering the entire facts and circumstances of this case, this
Court is of the considered view that the learned courts below have
passed well-reasoned judgements considering every aspect of the
matter and every argument advanced on behalf of the Petitioner
No.1. There being no perversity or illegality in the impugned
judgements of conviction, no interference is called for.
On the point of sentence
26. It is not in dispute that the present offence is the first offence
of the Petitioner No. 1 and as per Section 3 (a) of the Railway
Property (Unlawful Possession) Act, 1966, when the offence is the
first offence, it is open to the court to punish the convict with
imprisonment for a term which may extend to 5 years or with fine
or with both and in absence of special and adequate reasons to be
mentioned in the judgment of the court, the imprisonment shall
not be less than one year and such fine shall not be less than
Rs.1,000/-. As per Section 3 (b) of the Railway Property (Unlawful
Possession) Act, 1966, when the offence is the second or
subsequent offence, it is open to the court to punish the convict
with imprisonment for a term which may extend to 5 years and
also with fine and in absence of special and adequate reasons to be
mentioned in the judgment of the court, the imprisonment shall
not be less than two years and such fine shall not be less than
Rs.2,000/-.
27. The learned counsel has submitted that as the present
offence is the first offence of the Petitioner No. 1, it is open to the
court to impose imprisonment or fine or with both. Accordingly,
he has submitted that looking into the facts and circumstances of
the case and the fact that the Petitioner No.1 has remained in
custody in connection with the present offence, for about 3 ½
months and 29 years have elapsed from the date of the incident, he
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has prayed for modification of sentence to fine instead of
imprisonment.
28. This Court finds that the instant case is of the year 1992 and
the Petitioner No.1 has faced the rigors of criminal case for a long
period and has already remained in custody for a period of about
3 ½ months and his present age is more than 59 years and as per
the impugned judgements, the present offence is the first offence
of the Petitioner No.1. In such circumstances, this Court is of the
considered view that the ends of justice would be served if the
sentence of the petitioner is modified by imposing fine instead of
asking the petitioner to serve the remaining sentence. Accordingly,
the sentence of the sole surviving Petitioner No.1 is hereby
modified and he is sentenced with fine of Rs. 20,000/- to be
deposited before the learned trial court within a period of two
months from the date of receipt of a copy of this Judgment by the
learned trial court. In case of non-deposit of the fine amount
within the aforesaid timeframe, the bail bond furnished by the
Petitioner No. 1 shall stand cancelled and the Petitioner No. 1
would serve the sentence as awarded by the learned trial court.
29. Accordingly, with the aforesaid modification of sentence,
this criminal revision petition is hereby disposed of.
Appreciation of the learned Amicus Curiae
30. This Court observes that vide order dated 18.10.2019, Ms.
Swati Shalini, Advocate was appointed as Amicus Curiae in this
case by this Court. This Court records its appreciation for the
valuable assistance accorded by the learned Amicus Curiae in final
disposal of this case. The Secretary, Jharkhand High Court Legal
Services Committee is directed to ensure that the legal
remuneration of the learned Amicus Curiae is duly paid to her
within a period of 4 weeks upon submission of bills by her.
31. The office is directed to provide a copy of this order to Mrs.
Swati Shalini, the learned Amicus Curiae and also to the Secretary,
Jharkhand High Court Legal Services Committee.
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32. Pending interlocutory applications, if any, are closed.
33. Let the lower court records be sent back to the court
concerned.
34. Let a copy of this order be communicated to the learned
court below through 'E-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Amitesh /Mukul
