State Of Karnataka vs Rasheed
2021 Latest Caselaw 973 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 16TH DAY OF JANUARY, 2021

                     BEFORE

THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR

       CRIMINAL APPEAL NO.508 OF 2011 (A)

BETWEEN:

STATE OF KARNATAKA,
BY RAILWAY POLICE FORCE,
BANGARPET.                             ...APPELLANT

(BY SRI K.NAGESHWARAPPA, HCGP)

AND:

RASHEED,
S/O LATE ABDUL KUDUS,
AGED ABOUT 54 YEARS,
R/A DOOR NO.170,
KARANJIKATTE, KOLAR.                 ...RESPONDENT

(BY SRI KASHYAP N NAIK, ADVOCATE)
                         ****

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE
AN APPEAL AGAINST THE JUDGMENT DT:16.09.2010
PASSED BY THE PRL. SENIOR CIVIL JUDGE AND CJM,
KOLAR     IN   C.C.NO.345/05   -   ACQUITTING   THE
RESPONDENT FOR THE OFFENCE P/U/S 3(a) R.P. (U.P)
ACT, 1966.

     THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING THROUGH
PHYSICAL HEARING:
                             2


                      JUDGMENT

This appeal is directed against the order of

acquittal dated 16.09.2010 passed in C.C. No.345/2005

by the Principal Senior Civil Judge and CJM, Kolar.

2. The case of the prosecution is that on

2.2.2005 on receiving the information about the theft of

guard rails, the railway police secured the search

warrant from the JMFC Court to search the ANA Steel

Center, M.G. Road, Kolar. The Railway Police Inspector

conducted the raid at ANA Steel Center in presence of

two independent panch witnesses and seized 31 NG

rails of different sizes as mentioned in search list

prepared by the officials and the confessional statement

of accused No.2 was recorded. After completion of the

investigation the charge sheet was filed.

3. On securing the presence of the accused the

charge was read over, for which the accused pleaded not

guilty and opted for the trial. After trial the learned

Magistrate on appreciating the oral and documentary

evidence came to the conclusion that the prosecution

has failed to establish guilt of the accused and acquitted

the accused of the offences punishable under Section 3-

A of the Railway Property (Unlawful) Possession Act,

1966. MOs 1 and 2 seized were ordered to be released

to the accused. Being aggrieved by the said order the

prosecution has preferred the appeal.

4. Heard learned High Court Government

Pleader and learned counsel for the respondent

accused. Perused the judgment and the trial Court

records.

5. The learned High Court Government Pleader

would contend that the accused has given the statement

as per EX.P2 stating that he was in possession of rail

pieces. EX.P1, the seizure list confirms that the

properties were found in the premises of the accused

which are the railway properties. Evidence of PW.1

confirms the seizure of the railway property from the

possession of the accused. There is no serious

challenge to the version of PW.1. The mere fact that

the panch witnesses have not supported the

prosecution and the remaining prosecution witnesses

are the police officers is not a ground to disbelieve the

prosecution case. Even though two independent

witnesses namely PWs.2 and 3 have turned hostile their

statements namely EXs.P17 and P18 are still

admissible. Unlawful possession of the railway property

by the accused is confirmed by their statement. The

trial Court has failed to consider the relevant evidence

placed on record by the prosecution. The finding given

by the trial Court is erroneous.

6. Per contra, the learned counsel for the

accused-respondent submits that PW.6 who is the

complainant has only admitted that he has given report

as per EX.P4 but in the cross examination he has stated

that he did not know the contents of the said report.

Both the independent mahazar witnesses have turned

hostile. They have clearly sated that they have no

knowledge of the contents of seizure mahazar - EX.P1.

PW.5 is the Section Engineer in Railway Department

has given missing report as per EX.P6. But in the cross

examination he has stated that there were railway

identification marks on the property at Sl.Nos.10, 21,

28, 29 and 30 and there were no such marks on the

remaining properties. Further he has stated that the

railings and the KEB iron poles are identical in

appearance. PWs.6 and 7 are the keymen in railways

who have reported about the theft of railings, but their

evidence did not make out a case of theft of M.O.

properties by the accused.

7. At the time of recording the 313 statement

the accused has denied the incriminating circumstances

and the evidence and has also produced 18 documents

which are the invoices and Form No.39 delivery forms

issued under the Karnataka Sales Tax Act, 1957 in

respect of scrap materials purchased from the Maaz

Steel Traders on different dates during the period from

12.05.2001 to 20.07.2004. Considering these

documents and the evidence of the prosecution

witnesses the trial Court has come to the conclusion

that the prosecution has failed to establish that the

accused was in unlawful possession of the railway

property.

8. Having heard the submission of the learned

High Court Government Pleader and the counsel for the

accused the point that would arise for consideration is,

"Whether the trial Court was justified in acquitting the accused for the offence punishable under Section 3-A of the Railway Property (Unlawful Possession) Act ?"

9. In the instant case this Court has to re-

appreciate the material available on record since this

appeal is filed against the order of acquittal. In the

instant case CW.1 Sri K Shanmugavel, Railway Police

Inspector has conducted the raid on the shop of the

accused ANA Traders at Kolar along with two panch

witnesses and other officials and seized the properties

as per seizure list, but the said witness could not be

examined because of his death. PWs.2 and 3 are the

mahazar witnesses who have not supported the case of

the prosecution. They have only admitted their

signatures on the statements at EXs.P.17 and 18. The

search and seizure at the premises of the accused has

not been proved by these two independent witnesses.

The evidence of PW.4 proves that the accused is the

owner of ANA Steel Center from where the railway

properties were seized. The said fact is not in dispute.

10. PW.5 is the Section Engineer who has

received the theft memo from PWs.6 and 7. On the

basis of the said information he has conducted the

inspection and has submitted the report as per EX.P31.

According to this document namely, EX.P.31 six guard

rails are said to have been stolen from the spot. There

is no convincing evidence to prove that the property

shown in EX.P31 are the properties seized from the

accused.

11. In EX.P1, the search list of railway

properties it is mentioned that NG Rails have been

seized, but according to the report given by PWs.6 and 7

and evidence of PW.5 guard rails have been stolen from

the spot. The accused in his 313 statement has stated

that he has got documents to prove that the properties

found in possession are the properties purchased from

KPTCL by Maaz Steel Traders and thus certain rails

which are the scrap properties purchased by the

accused on several dates under 9 invoices. There are 9

copies of the delivery notice issued under the Karnataka

Sales Tax Act which goes to show the purchase of scrap

rails by the accused. When there are two views

regarding possession of Railway property by the

accused, the prosecution must discharge its burden by

placing the cogent evidence to prove the guilt of

accused.

12. On re-appreciation of the oral and

documentary evidence placed on record this Court is of

the view that there is no convincing evidence to prove

that the accused was in unlawful possession of the

railway property and the reasons assigned by the trial

Court in acquitting the accused are proper and correct.

There are no grounds to interfere with the findings of

the trial Court. Accordingly, I pass the following -

ORDER

This criminal appeal filed by the prosecution is

dismissed. The judgment and order of acquittal dated

16.09.2010 passed in C.C. No.345/2005 by the

Principal Senior Civil Judge and CJM, Kolar, is

confirmed. The properties at MOs.1 and 2 shall be

released to the respondent accused after the appeal

period is over.

Sd/-

JUDGE

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