Union Of India vs Abdul Razaq
2021 Latest Caselaw 3474 Kant

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         IN THE HIGH COURT OF KARNATAKA
                  AT BENGALURU

     DATED THIS THE 22ND DAY OF OCTOBER, 2021

                          BEFORE:

     THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

         CRIMINAL APPEAL NO.636 OF 2011
BETWEEN:

UNION OF INDIA REPRESENTED
BY RPF INSPECTOR, HASSAN                          ...   APPELLANT

[BY SMT K.P.YASHODHA, HCGP]

AND:

1.     ABDUL RAZAQ
       S/O SRI PAKEERABBA
       AGED ABOUT : 36 YEARS
       FIZAL NAGAR, BAJAL NAGAORI,
       MANGALORE

2.     MOHAMAD ISMAIL
       AGE: 39 YEARS
       S/O LATE SRI ABDUL KHADAR
       R/O D.NO.3/4, BAJAL-NAJAR
       MANGALORE                            ...     RESPONDENTS

[BY SRI DINESH KUMAR K.RAO, ADVOCATE FOR R1 & R2]
                            ***

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3)
OF CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST
THE JUDGMENT DATED 12.01.2010 PASSED BY THE IST ADDITIONAL
CIVIL JUDGE (SR.DN) AD C.J.M., MANGALORE IN C.C.NO.109/2003 -
ACQUITTING THE RESPONDENT FOR THE OFFENCE P/U/S 3(a) OF THE
RAILWAY PROPERTY (UNLAWFUL POSSESSION).

     THIS CRIMINAL APPEAL COMING ON FOR ORDERS, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
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                           JUDGMENT

This appeal is preferred by the State challenging the

judgment and order of acquittal passed by the trial Court,

acquitting the accused/respondents of an offence punishable

under Section 3(a) of Railway Property (Unlawful Possession)

Act.

2. There is a delay of 422 days in preferring the appeal.

The State has filed I.A No.1/2011 to condone the delay.

3. I have heard the learned High Court Government

Pleader for State and perused the material on record.

4. Brief facts of the prosecution case are that on

17.05.2003 at about 4.30 p.m., the complainant namely

Inspector, RPF-Hassan along with other officials after obtaining a

search warrant from the learned JMFC, Mangalore conducted a

search in the scarp shop No.5-146 of accused No.1, situated at

Fizal Nagal, Bajal, Nagori in the presence of two witnesses and

on search being conducted, they found fish plates, bolt and nuts

belonging to the Railway Department. The said properties were

seized, as accused No.1 failed to produce any records pertaining

to ownership of the property. Further a sum of Rs.10,000/- was

also recovered from accused No.1, stated to be the proceeds of

properties which were sold to some third persons. The

confessional statement of accused No.1 revealed that the stolen

articles of Railway Department was sold to accused No.2. As

such the complainant and other officials proceeded to the house

of accused No.2 situated at Bajal Nagar, Mangalore, from where

11 pendrol clips, fish plates, nut and bolts, stated to be the

properties of railways were also seized in the presence of two

independent panchas by preparing a recovery mahazar, apart

from a sum of Rs.15,000/- recovered from accused No.2, stated

to be the proceeds of the properties sold to some unknown

person.

5. Charge was framed against accused Nos.1 and 2 for

an offence punishable under Section 3(a) R.P (UP) Act. The

prosecution got examined PWs.1 to 6 and got marked Exs.P1 to

P6 and MO's-1 to 3.

6. The learned Magistrate after considering the

evidence and material on record was pleased to acquit both the

accused of the charged offence. Hence, this appeal by the State.

7. The contention of learned High Court Government

Pleader is that there are sufficient material placed by the

prosecution to establish the guilt of the accused persons and

inspite of that the learned Magistrate has erroneously acquitted

them. She would contend that the articles belonging to Railways

were seized from the possession of accused Nos.1 and 2 and

they have not given any satisfactory explanation and in view of

the evidence adduced by the prosecution which has not been

contraverted, the accused are liable to be convicted. She further

contends that the learned Magistrate has not properly

appreciated the evidence and material on record in its proper

prospective and therefore, seeks to allow the appeal.

8. The material on record would disclose that the search

was conducted in the shop of accused No.1 and certain

properties such as 8DC fish plates, 4 bolts and nuts alleged to be

belonging to the railways were seized. Thereafter, as per the

voluntary statement of accused No.1, the shop of accused No.2

was also searched from where 11 pendrol clips, 3 nut bolts etc.,

were seized. It is not the case of prosecution that on these

articles any identification marks were present to show that those

articles belong to the Railway Department. PWs.4 and 5 are the

independent panch witnesses in whose presence the properties

are said to have been seized under Exs.P1 and 2. Both the

witnesses have turned hostile. Though PW.6 has stated that he

has issued certificate as per Ex.P4 stating that the articles belong

to the railways, however, he has admitted that there are no

identification marks or seal on those articles to show that the

said articles belong to the railways. Since the independent

panch witnesses have given a complete go by to the case of

prosecution, the trial Court has given benefit of doubt to the

accused persons and acquitted them holding that the recovery

mahazar Exs.P1 and 2 have not stood established beyond

reasonable doubt and prosecution has failed to establish the fact

regarding accused Nos.1 and 2 having been found in possession

of railway properties. I see no illegality in the judgment of

acquittal passed by the trial Court. Besides that there is a delay

of 422 days in filing the appeal. Considering the above aspects, I

pass the following:

ORDER

Appeal is dismissed.

Consequently, I.A.No.1/2011 is also dismissed.

Sd/-

JUDGE

HB/-