Jharkhand High Court
) Mofil Khan vs The State Of Jharkhand ... ... Opposite ... on 10 September, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1451 of 2016
1) Mofil Khan, son of late Nabiru Khan.
2) Javed Khan, son of Mofil Khan.
Both resident of village Tilliyatand, Chakla, P.O. & P.S. Chandwa,
District Latehar (Jharkhand) ... ... Petitioners
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. A. K. Kashyap, Senior Advocate
: Mr. Ritesh Verma, Advocate
: Mr. Pankaj Kumar, Advocate
For the Opp. Party-State : Mr. Pankaj Kumar Mishra, APP
For the Railways : Mr. Ravi Prakash, Advocate
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08/10.09.2024 Heard the learned Senior counsel appearing on behalf of the
petitioners Mr. A. K. Kashyap, Senior Advocate along with Mr. Ritesh
Verma and Mr. Pankaj Kumar, learned counsel for the petitioners.
2. Learned Senior counsel for the petitioners, while assailing the
impugned judgments, has submitted that the learned Trial Court has
not properly appreciated the materials on record and therefore, the
judgment of conviction though upheld by the learned appellate Court,
calls for interference. He has submitted that a charge was framed
under section 3 of Railway Property (Unlawful Possession) Act, 1966
[hereinafter referred to as RP(UP) Act] and there was no particular
reference to section 3(a) or 3(b) of RP(UP) Act. He submits that the
petitioner no. 1 has been convicted under section 3(b) of RP(UP) Act
and has been sentenced to Rigorous Imprisonment for three years and
petitioner no. 2 has been convicted by referring to only section 3 of
RP(UP) Act. Petitioner no. 2 has been awarded punishment of
Rigorous Imprisonment of one year. He submits that the petitioner no.
1 is the father of petitioner no. 2.
3. On the merits of the case, the learned Senior counsel for the
petitioners has submitted that there were altogether four witnesses.
P.W. 1 was Assistant Sub-Inspector of RPF, P.W. 2 was the enquiry
officer, P.W. 3 was the guard of the train, who turned hostile and P.W.
4 was the complainant.
4. He submits that so far as these two petitioners are concerned,
their confessional statement has not been recorded at the stage of
enquiry. Only the confessional statement of co-accused was recorded
at the stage of enquiry.
5. He submits that only one person was apprehended from village
Bhandargarha where coal was dumped in open space which was 100
meter away from railway track and the seizure list - Exhibit- 1 reveals
that about 12 tons coal was loaded on the truck bearing no. JH 11A-
3205 and 5 tons was lying near the truck and 4 number of empty
baskets were also found. He submits that the place of seizure was
much away from the railway track and therefore, the seized coal
cannot be said to be Railway property. The learned Senior counsel
submits that the coal is readily available in the market and therefore, it
cannot be presumed that the coal which was recovered in village
Bhandargarha was railway property. Learned Senior counsel has
further submitted that there is another seizure list namely sample
seizure list which was marked as Exhibit- 3 relating to the coal seized
near the railway track from where 5 kg of raw coal was seized.
6. Learned Senior counsel for the petitioners has also submitted
that the possession of the petitioners with respect to railway property
has not been proved, rather they were never in possession of railway
property. At best, the coal was kept in open place away from railway
line and the truck with coal and coal lying on the ground were seized.
There is no seizure around the railway track except the sample of 5
Kgs. He has submitted that it has not been proved as to who had
committed the theft and who had carried the coal from railway siding
to Bhandargarha. He has submitted that P.W. 4 has also stated in his
cross-examination that such coal is available in the open market.
7. The learned Senior counsel for the petitioners submits that in
such circumstances the petitioners are entitled for benefit of doubt and
therefore, the judgment of conviction be set aside . The petitioners
were never proceeded against under any other provision of law
including the provision of Indian Penal Code.
8. He submits that under the aforesaid circumstances, the
conviction of the petitioners under the provisions of RP(UP) Act
cannot be sustained in the eyes of law.
9. Argument for the petitioners is concluded.
10. As the Court's time is over, post this case day after tomorrow
i.e. on 12th September 2024 for argument of the respondents.
(Anubha Rawat Choudhary, J.)
Pankaj
