Sri A.Ramachandra Rao, B.Com., B.L.,

1

IN THE COUR OF THE II-METROPOLITAN MAGISTRATE FOR RAILWAYS,

VIJAYAWADA. AT CAMP COURT, RAJAHMUNDRY.

PRESENT: SRI A.RAMACHANDRA RAO,

II-METROPOLITAN MAGISTRATE

FOR RAILWAYS, VIJAYAWADA.

FRIDAY, THIS THE 27 th DAY OF APRIL, 2018.

C.C.No.54 of 2018.

Between:- State Rep. by the Inspector, R.P.F., Rajahmundry.

...Complainant.

And: Enreddy Durga Prasad S/o Late Narasimhulu, Age: 21 years, Caste by Reddy, Coolie, R/o Vamabe Colony, Maduravada,Visakhapatnam.

...Accused.

This case coming on this day for final hearing before me in the presence of Public Prosecutor for the complainant and of Sri T.R.K. Srinivas, Legal Aid Counsel for the accused and the matter having been stood over for consideration, this court delivered the following::

J U D G M E N T

The Sub-Inspector, Railway Protection Force, Rajahmundry, filed complaint against the accused for the offence Under Section 3 (a) of R.P. (U.P.) Act in Crime No.10/2018 of RPF Post, Rajahmundry, alleging as follows:

2)On 02-02-2018 at about 06-30 hours while P.W.1,

N.Ramaiah, Inspector, RPF, Rajahmundry, along with his staff was on rounds, at K.M.No.581/4-6 on up line in between Kadiyam and

Rajahmundry Railway Stations, they found the accused carrying one polythene bag in a suspicious manner. On suspicion, they detained the accused, secured mediators i.e., P.W.2 M.Srinivas and L.W.3 M.Rambabu and in their presence, when questioned about the contents of the said bag, the accused revealed his identity and confessed that the bag contained M.O.1 one Railway fish plate and M.O.2 Twelve Railway

Pendrol clips committed theft of by him at the said place with an intention to sell the same to any vendor to meet his expenses. The accused failed to produce any voucher or receipt for lawful possession of the said property. Then, he arrested the accused after explaining the grounds of arrest and seized the said property from his possession in the presence of the said mediators under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list. He examined the accused and recorded his statement under Ex.P.3. Later they brought the accused along with the 1 2 case property to RPF Post, Rajahmundry and registered a case in

Cr.No.10/2018 U/Sec.3(a) of RP (UP) Act of RPF Post, Rajahmundry and got produced the accused before the Court for remand.

During the course of enquiries, on 03.02.2018 P.W.1 received ExP.4 theft report from L.W.4 K.Srinivas, Senior Engineer,

P.Way, Rajahmundry about missing of M.Os.1 & 2 Property. On the same day, he produced the said property before the said Senior Section

Engineer, P.Way for certification and accordingly he examined the same and issued Ex.P.5 certificate to the effect that M.Os.1 & 2 property belonged to Indian Railways used in Engineering Department for track maintenance. On 09-02-2018, he examined and recorded the statement of the mediator P.W.2 under Ex.P.6. On 10-02-2018 he examined and recorded the statements of L.W.3 M.Rambabu under Ex.P.7. After completion of enquiries, he filed complaint against the accused. Hence the complaint.

3)This casewas taken cognizance of the offence Under

Section 3(a) of RP (UP) Act against the accused. On appearance of the accused, copies of all documents were furnished to him. The accused was examined Under Section 246 of Cr.P.C. for the alleged offence after dispensing with the enquiry under Sec.244 of Cr.P.C., on the memo filed by the learned public prosecutor as the record available discloses that there is a prima facie case against the accused for the alleged offence.

The accused pleaded not guilty of the offence. After hearing both sides, charge Under Section 3(a) of RP (UP) Act 1966 was framed against the accused, read over and explained the same to him in Telugu. He pleaded not guilty of the said charge and claimed to be tried.

4)In order to prove its case, the prosecution has examined

P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.Os.1 & 2. The remaining witnesses cited in the memo of evidence were given up by the learned Public Prosecutor.

5)After closure of the prosecution evidence, the accused was examined Under Section 313 Cr.P.C. explaining the incriminating material in the evidence of prosecution witnesses. He denied the same and reported no defence witnesses.

6)Heard the arguments of the learned Public Prosecutor for

Railway Protection Force and also the learned counsel for the accused.

Perused the record including oral and documentary evidence.

7) Now the point for determination is:

1 3

Whether the prosecution has proved its case against the accused for the charge Under Section 3(a) of R.P. (UP) Act, 1966 beyond reasonable doubt?

8) POINT:-

(i)It is the case of the prosecution that on 02-02-2018 at about 06-30 hours, at K.M.No.581/4-6 on up line in between Kadiyam and

Rajahmundry Railway Stations, the accused was found in possession of

Railway property i.e., M.O.1 one Railway fish plate and M.O.2 Twelve

Railway Pendrol clips without any valid receipt or voucher and thereby he committed an offence punishable U/s. 3(a) of R.P.(U.P.) Act. The case of the accused is total denial of the case of the prosecution.

(ii)As already stated above, in order to bring home the guilt of accused for the charge framed against him, the prosecution has examined P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.Os.1 & 2.

P.W.1 is the investigating officer in this case. P.W.2 is one of the mediators in whose presence P.W.1 was said to have arrested the accused and seized M.O.1 one Railway fish plate and M.O.2 Twelve

Railway Pendrol clips from his possession under cover of Ex.P.1

Panchanama and Ex.P.2 seizure list, examined the accused and recorded his statement under Ex.P.3 in the presence of the mediators.

(iii)As seen from the language employed in section 3(a) Railway

Property (Un-lawful possession) Act 1966, the prosecution has to prove that the property in question should be railway property; it should be reasonably suspected of having been stolen or unlawfully obtained and it should be found or proved that the accused was or had been in possession of that property.

(iv)The evidence of P.W.1 is in consonance with the averments in the complaint. It is evident from the evidence of P.W.1 that on 02-02- 2018 at about 06-30 hours, at K.M.No.581/4-6 on up line in between

Kadiyam and Rajahmundry Railway Stations, he arrested the accused while he was found in possession of Railway property i.e., M.O.1 one

Railway fish plate and M.O.2 Twelve Railway Pendrol clips and seized the same from his possession under cover of Ex.P.1 Panchanama and

Ex.P.2 seizure list in the presence of the mediators P.W.2 & L.W.3

M.Rambabu and later he examined the accused and recorded his statement under Ex.P3.

1 4

v)It is also evident from the evidence of P.W.1 that during the course of enquiries, on 03.02.2018 he received ExP.4 theft report from

L.W.4 K.Srinivas, Senior Engineer, P.Way, Rajahmundry about missing of

M.Os.1 & 2 Property; on the same day, he produced the said property

before the said Senior Section Engineer, P.Way for certification and

accordingly he examined the same and issued Ex.P.5 certificate to the effect that M.Os.1 & 2 property belonged to Indian Railways used in

Engineering Department for track maintenance; on 09-02-2018, he examined and recorded the statement of the mediator P.W.2 under

Ex.P.6; and on 10-02-2018 he examined and recorded the statement of

L.W.3 M.Rambabu under Ex.P.7.

(vi)The above evidence of P.W.1 is corroborated by P.W.2, one of the mediators, in respect of arrest of the accused and seizure of

M.O.1 one Railway fish plate and M.O.2 Twelve Railway Pendrol clips from his possession under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list and recording of the statement of the accused under Ex.P.3.

Nothing is elicited from the cross examination of P.Ws.1 and 2 to discredit their testimony. It is simply suggested to P.Ws.1 and 2 that nothing was seized from the possession of the accused under the cover of Ex.P.1 and that the accused was falsely implicated in this case for statistical purpose. They denied the said suggestion. No enmity is suggested to PW.2, who is an independent witness to disbelieve his evidence. It is simply suggested to P.Ws.1 & 2 in their cross examination that the mediators in this case are the vendors in Railway Station and the thumb impressionsof the accused were obtained on the statements by force and threat. They denied the said suggestion. As seen from

Ex.P.5 property certificate, M.O.1 one Railway fish plate and M.O.2

Twelve Railway Pendrol clips are belonged to Indian Railways.

(vii) The Hon’ble Apex Court in Balakishan A.Devidayal Vs. State of Maharashtra reported in 1980 CRL.L.J.1424, it was held as follows:

“In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the code.

Particularly, he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the code, which has been held to be the clinching attribute of an investigating ‘police officer’. Thus, judged by the test laid down in Badku Jyoti 1 5 Savant’s case, which has been consistently adopted in the subsequent decisions noticed above. Inspector Kakade of the RPF could not be deemed to be a ‘police officer’ within the meaning of Section 25 of the

Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.”

(viii)In the light of the above decision, the confessional statement of the accused marked as Ex.P.3 is admissible in evidence.

The confessional statement of the accused coupled with the evidence of

P.Ws.1 & 2, Ex.P.1 Panchanama and Ex.P.2 seizure list clearly established the fact that M.O.1 one Railway fish plate and M.O.2 Twelve

Railway Pendrol clips have been recovered from the possession of the accused. So an inference can be drawn that the statement of the accused is made voluntarily.

(ix)As per Section 114 (a) of Indian Evidence Act, a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. But there was no explanation rendered by the accused for such possession.

(x)The evidence on record inspires the confidence of the Court to believe the same. Basing on the evidence on record, in the light of the above decision, it can be safely concluded that the accused has committed the offence under section 3 (a) of Railway Property (Unlawful

Possession) Act. Therefore, I hold that the complainant has proved its case against the accused for the charge U/sec.3 (a) of Railway Property (Unlawful Possession) Act, beyond reasonable doubt. Accordingly this point is answered.

09)In the result, the accused is found guilty of the offence

Under Section 3(a) of Railway Property (Unlawful possession) Act and convicted Under Section 248(2) of Cr.P.C.

Typed to my dictation by the Stenographer, corrected and

pronounced by me this the 27th day of April, 2018.

Sd/ A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

10) When the accusedis heard on the question of sentence to be imposed on him, he pleaded mercy. He submits that he is a bachelor 1 6 and his parents depend upon him and that he has been living by doing coolie work. He further submits that he has not committed any offence previously and that he has been in jail for the last three months as he has no means to furnish sureties for his release on bail. He, therefore, prays to take a lenient view in sentencing him and release him treating the remand period already undergone by him as a sentence in this case.

The learned counsel for the accused also submitted that the accused is not involved in a case of this nature previously and therefore, a lenient view may be taken in sentencing him. The learned Public Prosecutor of

Railway Protection Force has submitted that the accused is not involved in any other offence and this is the first offence committed by him.

11)The offence Under Section 3(a) of RP (UP) Act, 1966 is punishable for first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the 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 One Thousand rupees.

12) The property involved in this case is worthRs.

740/- (Rupees seven hundred and forty only). The learned Counsel for accused has submitted that the accused is not involved in any other cases and that he is not convicted by any other court previously. As the offence committed by the accused is in respect of the railway property, I feel that it is not a fit case to invoke the provisions of Probation of

Offenders Act.

13)Considering the submission of the accused and his counsel and also the learned Public Prosecutor, keeping in view the value of the property involved in this case I am inclined to take a lenient view in sentencing the accused.

14)Accordingly, the accused is sentenced to undergo simple imprisonment for three months for the offence U/Sec.3 (a) of RP (UP)

Act. The remand period from 02.02.2018 to 27.04.2018 shall be given set off U/s. 428 Cr.P.C. M.O.1 one Railway fish plate and M.O.2 Twelve

Railway Pendrol clips shall be returned to the concerned Railway

Authority under proper acknowledgment and report compliance after appeal time is over.

15)The accused is informed about his right to prefer an appeal against this judgment and he is also informed that if he has no means to 1 7 engage an advocate to prefer an appeal, he is at liberty to approach

Mandal Legal Services Authority for free legal aid.

Typed to my dictation by Stenographer, corrected and

pronounced by me in open court on this the 27th day of April, 2018.

Sd/ A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE: None.

P.W.1/20.04.2018: N.Ramaiaha, Inspector, RPF. P.W.2/20.04.2018: M.Rambabu, Mediator.

EXHIBITS MARKED.

FOR PROSECUTION : FOR DEFENCE: Nil Ex.P.1/02.02.2018: Panchanama. Ex.P.2/02.02.2018: Seizure list. Ex.P.3/02.02.2018: Statement of the accused. Ex.P.4/03.02.2018: Theft Report. Ex.P.5/03.02.2018: Case Property Certificate. Ex.P.6/09.02.2018: Statement of L.W.2 M.Srinivas, Mediator. Ex.P.7/10.02.2018: Statement of P.W.2, Mediator.

No. of material objects marked:- M.O.1: One Railway Fish Plate. M.O.2: Twelve Railway Pendrol clips. Sd/ A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp court at Rajahmundry.

// True Copy//

II Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry 1

1

IN THE COURT OF THE II-METROPOLITAN MAGISTRATE FOR RAILWAYS,

VIJAYAWADA. AT CAMP COURT, RAJAHMUNDRY.

PRESENT: SRI A.RAMACHANDRA RAO,

II-METROPOLITAN MAGISTRATE

FOR RAILWAYS, VIJAYAWADA.

FRIDAY, THIS THE 27 th DAY OF APRIL, 2018.

C.C.No.64 of 2018

Between:- State Rep. by the Sub-Inspector, R.P.F. Post, Rajahmundry.

...Complainant.

And: Peram Vijay Kumar S/o Narasimharao, Age:44 years, Caste by Kapu, R/o Yerra Konda, Near Sai Baba Temple, Dowleswaram, Rajahmundry Rural, E.G.District.

...Accused.

This case coming on this day for final hearing before me in the presence of Public Prosecutor for the complainant and of Sri T.R.K. Srinivas, Legal Aid Counsel for the accused and the matter having been stood over for consideration, this court delivered the following::

J U D G M E N T

The Sub-Inspector, Railway Protection Force, Rajahmundry, filed complaint against the accused for the offence Under Section 3 (a) of R.P. (U.P.) Act in Crime No.08/2018 of RPF Post, Rajahmundry, alleging as follows:

2)On 01-02-2018 at about 13-40 hours. While P.W.1, Hafeez

Khan, Sub-Inspector, RPF, Rajahmundry, along with his staff was on rounds, near Murali Krishna Theatre, Dowleswaram Area of

Rajahmundry, they found the accused carrying one basket on his cycle in a suspicious manner. On suspicion, they detained the accused, secured mediators i.e., P.W.2 N.Prasad and L.W.3 B.Krishna and in their presence, when questioned about the contents of the said bag, the accused revealed his identity and confessed that the bag contained

M.O.1 eighteen Railway Hook Bolts purchased by him from an unknown offender for Rs.200/- with an intention to sell the same to any vendor for profit. The accused failed to produce any voucher or receipt for lawful possession of the said property. Then, he arrested the accused after explaining the grounds of arrest and seized the said property along with

M.O.2 cycle from his possession in the presence of the said mediators under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list. He examined the accused and recorded his statements under Ex.P.3. Later they brought the accused along with the case property to RPF Post, 1 2 Rajahmundry and registered a case in Cr.No.08/2018 U/Sec.3(a) of RP (UP) Act of RPF Post, Rajahmundry and got produced the accused before the Court for remand.

During the course of enquiries, on 02.02.2018 P.W.1 received Ex.P.4 theft report from L.W.4 R.P.P.C.S.Rao, Senior Engineer,

BR1-11/Rajahmundry about missing of M.O.1 Property. On 03-02-2018 he produced the said property before the said Senior Section Engineer, for certification and accordingly he examined the same and issued

Ex.P.5 certificate to the effect that M.O.1 property belonged to Indian

Railways used in Engineering Department. On 11-02-2018, he examined and recorded the statement of the mediator P.W.2 under Ex.P.6. On 12- 02-2018, he examined and recorded the statement of the mediator

L.W.3 B.Krishna under Ex.P.7. After completion of enquiries, he filed complaint against the accused. Hence the complaint.

3)This casewas taken cognizance of the offence Under

Section 3(a) of RP (UP) Act against the accused. On appearance of the accused, copies of all documents were furnished to him. The accused was examined Under Section 246 of Cr.P.C. for the alleged offence after dispensing with the enquiry under Sec.244 of Cr.P.C., on the memo filed by the learned public prosecutor as the record available discloses that there is a prima facie case against the accused for the alleged offence.

The accused pleaded not guilty of the offence. After hearing both sides, charge Under Section 3(a) of RP (UP) Act 1966 was framed against the accused, read over and explained the same to him in Telugu. He pleaded not guilty of the said charge and claimed to be tried.

4)In order to prove its case, the prosecution has examined

P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.O.1. The remaining witnesses cited in the memo of evidence were given up by the learned

Public Prosecutor.

5)After closure of the prosecution evidence, the accused was examined Under Section 313 Cr.P.C. explaining the incriminating material in the evidence of prosecution witnesses. He denied the same and reported no defence witnesses.

6)Heard the arguments of the learned Public Prosecutor for

Railway Protection Force and also the learned counsel for the accused.

Perused the record including oral and documentary evidence.

7) Now the point for determination is:

Whether the prosecution has proved its case against 1 3 the accused for the charge Under Section 3(a) of R.P. (UP) Act, 1966 beyond reasonable doubt?

8) POINT:-

(i)It is the case of the prosecution that on 01-02-2018 at about 13-40 hours, near Murali Krishna Theatre, Dowleswaram Area of

Rajahmundry, the accused was found in possession of Railway property i.e., M.O.1 eighteen Railway Hook Bolts without any valid receipt or voucher and thereby he committed an offence punishable U/s. 3(a) of

R.P.(U.P.) Act. The case of the accused is total denial of the case of the prosecution.

(ii)As already stated above, in order to bring home the guilt of accused for the charge framed against him, the prosecution has examined P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.O.1. P.W.1 is the investigating officer in this case. P.W.2 is one of the mediators in whose presence P.W.1 was said to have arrested the accused and seized M.O.1 eighteen Railway Hook Bolts from his possession under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list, examined the accused and recorded his statement under Ex.P.3 in the presence of the mediators.

(iii)As seen from the language employed in section 3(a) Railway

Property (Un-lawful possession) Act 1966, the prosecution has to prove that the property in question should be railway property; it should be reasonably suspected of having been stolen or unlawfully obtained and it should be found or proved that the accused was or had been in possession of that property.

(iv)The evidence of P.W.1 is in consonance with the averments in the complaint. It is evident from the evidence of P.W.1 that on 01-02- 2018 at about 13-40 hours, near Murali Krishna Theatre, Dowleswaram

Area of Rajahmundry,he arrested the accused while he was found in possession of Railway property i.e.,M.O.1 eighteen Railway Hook Bolts and seized the same from his possession under cover of Ex.P.1

Panchanama and Ex.P.2 seizure list in the presence of the mediators

P.W.2 & L.W.2 T.Ramu L.W.3 B.Krishna and later he examined the accused and recorded his statement under Ex.P3.

v)It is also evident from the evidence of P.W.1 that during the course of enquiries, on 02.02.2018 P.W.1 received Ex.P.4 theft report from L.W.4 R.P.P.C.S.Rao, Senior Engineer, BR1-11/Rajahmundry about missing of M.O.1 Property; on 03-02-2018 he produced the said property 1 4

before the said Senior Section Engineer, for certification and accordingly

he examined the same and issued Ex.P.5 certificate to the effect that

M.O.1 property belonged to Indian Railways used in Engineering

Department; on 11-02-2018, he examined and recorded the statement of the mediator P.W.2 under Ex.P.6; and on 12-02-2018, he examined and recorded the statement of the mediator L.W.3 B.Krishna under

Ex.P.7.

(vi)The above evidence of P.W.1 is corroborated by P.W.2, one of the mediators, in respect of arrest of the accused and seizure of

M.O.1 eighteen Railway Hook Bolts from his possession under cover of

Ex.P.1 Panchanama and Ex.P.2 seizure list and recording of the statement of the accused under Ex.P.3. Nothing is elicited from the cross examination of P.Ws.1 and 2 to discredit their testimony. It is simply suggested to P.Ws.1 and 2 that nothing was seized from the possession of the accused under the cover of Ex.P.1 and that the accused was falsely implicated in this case for statistical purpose. They denied the said suggestion. No enmity is suggested to PW.2, who is an independent witness to disbelieve his evidence. It is simply suggested to P.Ws.1 & 2 in their cross examination that the mediators in this case are the vendors in Railway Station and the signaturesof the accused were obtained on the statements by force and threat. They denied the said suggestion. As seen from Ex.P.5 property certificate, M.O.1 eighteen Railway Hook Bolts are belonged to Indian Railways.

(vii) The Hon’ble Apex Court in Balakishan A.Devidayal Vs. State of Maharashtra reported in 1980 CRL.L.J.1424, it was held as follows:

“In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the code.

Particularly, he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the code, which has been held to be the clinching attribute of an investigating ‘police officer’. Thus, judged by the test laid down in Badku Jyoti

Savant’s case, which has been consistently adopted in the subsequent decisions noticed above. Inspector Kakade of the RPF could not be deemed to be a ‘police officer’ within the meaning of Section 25 of the

Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 1 5 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.”

(viii)In the light of the above decision, the confessional statement of the accused marked as Ex.P.3 is admissible in evidence.

The confessional statement of the accused coupled with the evidence of

P.Ws.1 & 2, Ex.P.1 Panchanama and Ex.P.2 seizure list clearly established the fact that M.O.1 eighteen Railway Hook Bolts have been recovered from the possession of the accused. So an inference can be drawn that the statement of the accused is made voluntarily.

(ix)As per Section 114 (a) of Indian Evidence Act, a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. But there was no explanation rendered by the accused for such possession.

(x)The evidence on record inspires the confidence of the Court to believe the same. Basing on the evidence on record, in the light of the above decision, it can be safely concluded that the accused has committed the offence under section 3 (a) of Railway Property (Unlawful

Possession) Act. Therefore, I hold that the complainant has proved its case against the accused for the charge U/sec.3 (a) of Railway Property (Unlawful Possession) Act, beyond reasonable doubt. Accordingly this point is answered.

09)In the result, the accused is found guilty of the offence

Under Section 3(a) of Railway Property (Unlawful possession) Act and convicted Under Section 248(2) of Cr.P.C.

Typed to my dictation by the Stenographer, corrected and

pronounced by me this the 27th day of April, 2018.

Sd/A. Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

10) When the accusedis heard on the question of sentence to be imposed on him, he pleaded mercy. He submits that he has wife and two children who depend upon him and that he has been living by doing coolie work. He further submits that he has not committed any offence previously and that he has been in jail for the last three months as he has no means to furnish sureties for his release on bail. He, therefore, prays to take a lenient view in sentencing him and release him treating the remand period already undergone by him as a sentence in this case.

The learned counsel for the accused also submitted that the accused is 1 6 not involved in a case of this nature previously and therefore, a lenient view may be taken in sentencing him. The learned Public Prosecutor of

Railway Protection Force has submitted that the accused is not involved in any other offence and this is the first offence committed by him.

11)The offence Under Section 3(a) of RP (UP) Act, 1966 is punishable for first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the 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 One Thousand rupees.

12) The property involved in this case is worth

Rs.1,060/- (Rupees one thousand and sixty only). The learned Counsel

for accused has submitted that the accused is not involved in any other

cases and that he is not convicted by any other court previously. As the offence committed by the accused is in respect of the railway property, I feel that it is not a fit case to invoke the provisions of Probation of

Offenders Act.

13)Considering the submission of the accused and his counsel and also the learned Public Prosecutor, keeping in view the value of the property involved in this case I am inclined to take a lenient view in sentencing the accused.

14)Accordingly, the accused is sentenced to undergo simple imprisonment for three months for the offence U/Sec.3 (a) of RP (UP)

Act. The remand period from 01.02.2018 to 27.04.2018 shall be given set off U/s. 428 Cr.P.C. M.O.1 eighteen Railway Hook Bolts shall be returned to the concerned Railway Authority under proper acknowledgment and report compliance after appeal time is over. M.O.2 cycle shall be returned to the accused after appeal time is over.

15)The accused is informed about his right to prefer an appeal against this judgment and he is also informed that if he has no means to engage an advocate to prefer an appeal, he is at liberty to approach

Mandal Legal Services Authority for free legal aid.

Typed to my dictation by Stenographer, corrected and

pronounced by me in open court on this the 27th day of April, 2018.

Sd/A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

APPENDIX OF EVIDENCE

1 7

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE: None. P.W.1/20.04.2018: Hafeez Kahn, Sub-Inspector, RPF. P.W.2/20.04.2018: N.Prasad, Mediator.

EXHIBITS MARKED.

FOR PROSECUTION : FOR DEFENCE: Nil Ex.P.1/01.02.2018: Panchanama. Ex.P.2/01.02.2018: Seizure list. Ex.P.3/01.02.2018: Statement of the accused. Ex.P.4/02.02.2018: Theft Report. Ex.P.5/03.02.2018: Case Property Certificate. Ex.P.6/11.02.2018: Statement of P.W.2 N.Prasad, Mediator. Ex.P.7/12.02.2018: Statement of L.W.3 B.Krishna, Mediator. No. of material objects marked:- M.O.1: Eighteen Railway Hook Bolts. Sd/A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp court at Rajahmundry. //True copy //

II-Metropolitan Magistrate for Railways, Vijayawada. Camp court at Rajahmundry 1

1

IN THE COURT OF THE II-METROPOLITAN MAGISTRATE FOR RAILWAYS,

VIJAYAWADA. AT CAMP COURT, RAJAHMUNDRY.

PRESENT: SRI A.RAMACHANDRA RAO,

II-METROPOLITAN MAGISTRATE

FOR RAILWAYS, VIJAYAWADA.

FRIDAY, THIS THE 27 th DAY OF APRIL, 2018.

C.C.No.60 of 2018

Between:- State Rep. by the Assistant Sub-Inspector, R.P.F. Post, Anakapalle.

...Complainant.

And: Kalla Rajesh S/o Apparao, Age:28 years, Caste by SC-Mala, R/o Tullupalli Village, Makavaripalem Mandal, Visakhapatnam District.

...Accused.

This case coming on this day for final hearing before me in the presence of Public Prosecutor for the complainant and of Sri T.R.K. Srinivas, Legal Aid Counsel for the accused and the matter having been stood over for consideration, this court delivered the following::

J U D G M E N T

The Assistant Sub-Inspector, Railway Protection Force,

Anakapalle, filed complaint against the accused for the offence Under

Section 3 (a) of R.P. (U.P.) Act in Crime No.01/2018 of RPF Post,

Anakapalle, alleging as follows:

2)On 07-02-2018 at about 14-00 hours. while P.W.1, S.Jeeva

Ratnam, Assistant Sub-Inspector, RPF, Anakapalle, along with his staff was on confidential watch, at K.M.No.728/24-26 at Narsingapalle

Railway Yard, they found the accused carrying one polythene bag in a suspicious manner. On suspicion, they detained the accused, secured mediators i.e., L.W.4 T.Ramu and P.W.2 Y.Adibabu and in their presence, when questioned about the contents of the said bag, the accused revealed his identity and confessed that the bag contained M.O.1 two

Railway fish plates committed theft of by him at the said place with an intention to sell the same to any vendor to meet his expenses. The accused failed to produce any voucher or receipt for lawful possession of the said property. Then, he arrested the accused after explaining the grounds of arrest and seized the said property from his possession in the presence of the said mediators under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list. He examined the accused and recorded his statements under Ex.P.3. Later they brought the accused along with the case property to RPF Post, Anakapalle and registered a case in 1 2 Cr.No.01/2018 U/Sec.3(a) of RP (UP) Act of RPF Post, Anakapalle and got produced the accused before the Court for remand.

During the course of enquiries, on 09.02.2018 P.W.1 received ExP.4 theft report from L.W.3 P.Anakama Rao, Senior Engineer,

P.Way, Anakapalle about missing of M.O.1 Property. On the same day, he produced the said property before the said Senior Section Engineer,

P.Way for certification and accordingly he examined the same and issued Ex.P.5 certificate to the effect that M.O.1 property belonged to

Indian Railways used in Engineering Department for track maintenance.

On the same day he examined and recorded the statements of the mediators L.W.4 T.Ramu and P.W.2 under Exs.P.6 & P.7 respectively.

After completion of enquiries, he filed complaint against the accused.

Hence the complaint.

3)This casewas taken cognizance of the offence Under

Section 3(a) of RP (UP) Act against the accused. On appearance of the accused, copies of all documents were furnished to him. The accused was examined Under Section 246 of Cr.P.C. for the alleged offence after dispensing with the enquiry under Sec.244 of Cr.P.C., on the memo filed by the learned public prosecutor as the record available discloses that there is a prima facie case against the accused for the alleged offence.

The accused pleaded not guilty of the offence. After hearing both sides, charge Under Section 3(a) of RP (UP) Act 1966 was framed against the accused, read over and explained the same to him in Telugu. He pleaded not guilty of the said charge and claimed to be tried.

4)In order to prove its case, the prosecution has examined

P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.O.1. The remaining witnesses cited in the memo of evidence were given up by the learned

Public Prosecutor.

5)After closure of the prosecution evidence, the accused was examined Under Section 313 Cr.P.C. explaining the incriminating material in the evidence of prosecution witnesses. He denied the same and reported no defence witnesses.

6)Heard the arguments of the learned Public Prosecutor for

Railway Protection Force and also the learned counsel for the accused.

Perused the record including oral and documentary evidence.

7) Now the point for determination is:

Whether the prosecution has proved its case against the accused for the charge Under Section 3(a) of R.P. (UP) Act, 1966 beyond reasonable doubt?

1 3

8) POINT:-

(i)It is the case of the prosecution that on 07-02-2018 at about 14-00 hours, at K.M.No.728/24-26 at Narsingapalle Railway Yard, the accused was found in possession of Railway property i.e., M.O.1 two railway fish plates without any valid receipt or voucher and thereby he committed an offence punishable U/s. 3(a) of R.P.(U.P.) Act. The case of the accused is total denial of the case of the prosecution.

(ii)As already stated above, in order to bring home the guilt of accused for the charge framed against him, the prosecution has examined P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.O.1. P.W.1 is the investigating officer in this case. P.W.2 is one of the mediators in whose presence P.W.1 was said to have arrested the accused and seized M.O.1 two railway fish plates from his possession under cover of

Ex.P.1 Panchanama and Ex.P.2 seizure list, examined the accused and recorded his statement under Ex.P.3 in the presence of the mediators.

(iii)As seen from the language employed in section 3(a) Railway

Property (Un-lawful possession) Act 1966, the prosecution has to prove that the property in question should be railway property; it should be reasonably suspected of having been stolen or unlawfully obtained and it should be found or proved that the accused was or had been in possession of that property.

(iv)The evidence of P.W.1 is in consonance with the averments in the complaint. It is evident from the evidence of P.W.1 that on 07-02- 2018 at about 14-00 hours, at K.M.No.728/24-26 at Narsingapalle

Railway Yard, he arrested the accused while he was found in possession of Railway property i.e.,M.O.1 two railway fish plates and seized the same from his possession under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list in the presence of the mediators P.W.2 & L.W.2 T.Ramu and later he examined the accused and recorded his statement under Ex.P3.

v)It is also evident from the evidence of P.W.1 that during the course of enquiries, on 09.02.2018 P.W.1 received ExP.4 theft report from L.W.3 P.Anakama Rao, Senior Engineer, P.Way, Anakapalle about missing of M.O.1 Property; on the same day, he produced the said property before the said Senior Section Engineer, P.Way for certification and accordingly he examined the same and issued Ex.P.5 certificate to the effect that M.O.1 property belonged to Indian Railways used in

Engineering Department for track maintenance; and on the same day 1 4 he examined and recorded the statements of the mediators L.W.4

T.Ramu and P.W.2 under Exs.P.6 & P.7 respectively.

(vi)The above evidence of P.W.1 is corroborated by P.W.2, one of the mediators, in respect of arrest of the accused and seizure of

M.O.1 two railway fish plates from his possession under cover of Ex.P.1

Panchanama and Ex.P.2 seizure list and recording of the statement of the accused under Ex.P.3. Nothing is elicited from the cross examination of P.Ws.1 and 2 to discredit their testimony. It is simply suggested to

P.Ws.1 and 2 that nothing was seized from the possession of the accused under the cover of Ex.P.1 and that the accused was falsely implicated in this case for statistical purpose. They denied the said suggestion. No enmity is suggested to PW.2, who is an independent witness to disbelieve his evidence. It is simply suggested to P.Ws.1 & 2 in their cross examination that the mediators in this case are the vendors in Railway Station and the signaturesof the accused were obtained on the statements by force and threat. They denied the said suggestion. As seen from Ex.P.5 property certificate, M.O.1 two railway fish plates are belonged to Indian Railways.

(vii) The Hon’ble Apex Court in Balakishan A.Devidayal Vs. State of Maharashtra reported in 1980 CRL.L.J.1424, it was held as follows:

“In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the code.

Particularly, he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the code, which has been held to be the clinching attribute of an investigating ‘police officer’. Thus, judged by the test laid down in Badku Jyoti

Savant’s case, which has been consistently adopted in the subsequent decisions noticed above. Inspector Kakade of the RPF could not be deemed to be a ‘police officer’ within the meaning of Section 25 of the

Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.”

(viii)In the light of the above decision, the confessional statement of the accused marked as Ex.P.3 is admissible in evidence.

The confessional statement of the accused coupled with the evidence of 1 5 P.Ws.1 & 2, Ex.P.1 Panchanama and Ex.P.2 seizure list clearly established the fact that M.O.1 two railway fish plates have been recovered from the possession of the accused. So an inference can be drawn that the statement of the accused is made voluntarily.

(ix)As per Section 114 (a) of Indian Evidence Act, a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. But there was no explanation rendered by the accused for such possession.

(x)The evidence on record inspires the confidence of the Court to believe the same. Basing on the evidence on record, in the light of the above decision, it can be safely concluded that the accused has committed the offence under section 3 (a) of Railway Property (Unlawful

Possession) Act. Therefore, I hold that the complainant has proved its case against the accused for the charge U/sec.3 (a) of Railway Property (Unlawful Possession) Act, beyond reasonable doubt. Accordingly this point is answered.

09)In the result, the accused is found guilty of the offence

Under Section 3(a) of Railway Property (Unlawful possession) Act and convicted Under Section 248(2) of Cr.P.C.

Typed to my dictation by the Stenographer, corrected and

pronounced by me this the 27th day of April, 2018.

Sd/ A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

10) When the accusedis heard on the question of sentence to be imposed on him, he pleaded mercy. He submits that he has wife and two children who depend upon him and that he has been living by doing catering work. He further submits that he has not committed any offence previously and that he has been in jail for the last two months and fifteen days as he has no means to furnish sureties for his release on bail. He, therefore, prays to take a lenient view in sentencing him and release him treating the remand period already undergone by him as a sentence in this case. The learned counsel for the accused also submitted that the accused is not involved in a case of this nature previously and therefore, a lenient view may be taken in sentencing him. The learned Public Prosecutor of Railway Protection Force has submitted that the accused is not involved in any other offence and this is the first offence committed by him.

1 6

11)The offence Under Section 3(a) of RP (UP) Act, 1966 is punishable for first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the 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 One Thousand rupees.

12) The property involved in this case is worth

Rs.1,250/- (Rupees one thousand, two hundred and fifty only). The learned Counsel for accused has submitted that the accused is not involved in any other cases and that he is not convicted by any other court previously. As the offence committed by the accused is in respect of the railway property, I feel that it is not a fit case to invoke the provisions of Probation of Offenders Act.

13)Considering the submission of the accused and his counsel and also the learned Public Prosecutor, keeping in view the value of the property involved in this case I am inclined to take a lenient view in sentencing the accused.

14)Accordingly, the accused is sentenced to undergo simple imprisonment for two months and fifteen days for the offence U/Sec.3

(a) of RP (UP) Act. The remand period from- 07.02.2018 to 27.04.2018 shall be given set off U/s. 428 Cr.P.C. M.O.1 two railway fish plates shall be returned to the concerned Railway Authority under proper acknowledgment and report compliance after appeal time is over.

15)The accused is informed about his right to prefer an appeal against this judgment and he is also informed that if he has no means to engage an advocate to prefer an appeal, he is at liberty to approach

Mandal Legal Services Authority for free legal aid.

Typed to my dictation by Stenographer, corrected and

pronounced by me in open court on this the 27th day of April, 2018.

Sd/ A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE: None.

P.W.1/13.04.2018: S.Jeevaratnam, Asst. Sub-Inspector, RPF. P.W.2/20.04.2018: Y.Adibabu, Mediator.

EXHIBITS MARKED.

1 7 FOR PROSECUTION : FOR DEFENCE: Nil Ex.P.1/07.02.2018: Panchanama. Ex.P.2/07.02.2018: Seizure list. Ex.P.3/07.02.2018: Statement of the accused. Ex.P.4/09.02.2018: Theft Report. Ex.P.5/09.02.2018: Case Property Certificate. Ex.P.6/09.02.2018: Statement of L.W.4 T.Ramu, Mediator. Ex.P.7/09.02.2018: Statement of P.W.2, Mediator.

No. of material objects marked:- M.O.1: Two Railway Fish Plates. Sd/ A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp court at Rajahmundry. //True copy //

II-Metropolitan Magistrate for Railways, Vijayawada. Camp court at Rajahmundry 1

IN THE COURT OF THE II-METROPOLITAN MAGISTRATE FOR RAILWAYS,

VIJAYAWADA. AT CAMP COURT, RAJAHMUNDRY.

PRESENT: SRI A.RAMACHANDRA RAO,

II-METROPOLITAN MAGISTRATE

FOR RAILWAYS, VIJAYAWADA.

FRIDAY, THIS THE 27 th DAY OF APRIL, 2018.

C.C.No.51 of 2018

Between:- State Rep. by the Sub-Inspector, R.P.F. Out-Post, Samalkot.

...Complainant.

And: Pappala Siva S/o Late Krishna, Age: 24 years, R/o Kapulapeta, Juvvalapalem, Kalla Mandal, West Godavari District.

...Accused.

This case coming on this day for final hearing before me in the presence of Public Prosecutor for the complainant and of Sri T.R.K. Srinivas, Legal Aid Counsel for the accused and the matter having been stood over for consideration, this court delivered the following::

J U D G M E N T

The Sub-Inspector, Railway Protection Force, Samalkot, filed complaint against the accused for the offence Under Section 3 (a) of

R.P. (U.P.) Act in Crime No.07/2018 of RPF Post, Rajahmundry, alleging as follows:

2)On 01-02-2018 at about 13-40 hours. while P.W.1,

D.V.K.Reddy, Sub-Inspector, RPF, Samalkot, along with his staff was on confidential watch, at K.M.No.638/32-34 near closed LC Gate No.429 between SLO-PAP, they found the accused carrying one polythene bag in a suspicious manner. On suspicion, they detained the accused, secured mediators i.e., P.W.2 K.Raju and L.W.3 S.Yesu Babu and in their presence, when questioned about the contents of the said bag, the accused revealed his identity and confessed that the bag contained

M.O.1 three Railway fish plates committed theft of by him at the said place with an intention to sell the same to any vendor to meet his expenses. The accused failed to produce any voucher or receipt for lawful possession of the said property. Then, he arrested the accused after explaining the grounds of arrest and seized the said property from his possession in the presence of the said mediators under cover of

Ex.P.1 Panchanama and Ex.P.2 seizure list. He examined the accused and recorded his statement under Ex.P.3. Later they brought the accused along with the case property to RPF Out-Post, Samalkot and 2 registered a case in Cr.No.07/2018 U/Sec.3(a) of RP (UP) Act of RPF Post,

Rajahmundry and got produced the accused before the Court for remand.

During the course of enquiries, on 05.02.2018 P.W.1 received ExP.4 theft report from L.W.4 K.Srinivas, Senior Engineer,

P.Way, Pithapuram about missing of M.O.1 Property. On the same day, he produced the said property before the said Senior Section Engineer,

P.Way for certification and accordingly he examined the same and issued Ex.P.5 certificate to the effect that M.O.1 property belonged to

Indian Railways used in Engineering Department for track maintenance.

On 06-02-2018, he examined and recorded the statements of the mediators P.W.2 and L.W.3 S.Yesu Babu under Exs.P.6 & P.7 respectively. After completion of enquiries, he filed complaint against the accused. Hence the complaint.

3)This casewas taken cognizance of the offence Under

Section 3(a) of RP (UP) Act against the accused. On appearance of the accused, copies of all documents were furnished to him. The accused was examined Under Section 246 of Cr.P.C. for the alleged offence after dispensing with the enquiry under Sec.244 of Cr.P.C., on the memo filed by the learned public prosecutor as the record available discloses that there is a prima facie case against the accused for the alleged offence.

The accused pleaded not guilty of the offence. After hearing both sides, charge Under Section 3(a) of RP (UP) Act 1966 was framed against the accused, read over and explained the same to him in Telugu. He pleaded not guilty of the said charge and claimed to be tried.

4)In order to prove its case, the prosecution has examined

P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.O.1. The remaining witnesses cited in the memo of evidence were given up by the learned

Public Prosecutor.

5)After closure of the prosecution evidence, the accused was examined Under Section 313 Cr.P.C. explaining the incriminating material in the evidence of prosecution witnesses. He denied the same and reported no defence witnesses.

6)Heard the arguments of the learned Public Prosecutor for

Railway Protection Force and also the learned counsel for the accused.

Perused the record including oral and documentary evidence.

7) Now the point for determination is:

Whether the prosecution has proved its case against 1 3 the accused for the charge Under Section 3(a) of R.P. (UP) Act, 1966 beyond reasonable doubt?

8) POINT:-

(i)It is the case of the prosecution that on 01-02-2018 at about 13-40 hours,at K.M.No.638/32-34 near closed LC Gate No.429 between

SLO-PAP, the accused was found in possession of Railway property i.e.,

M.O.1 three railway fish plates without any valid receipt or voucher and thereby he committed an offence punishable U/s. 3(a) of R.P.(U.P.) Act.

The case of the accused is total denial of the case of the prosecution.

(ii)As already stated above, in order to bring home the guilt of accused for the charge framed against him, the prosecution has examined P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.O.1. P.W.1 is the investigating officer in this case. P.W.2 is one of the mediators in whose presence P.W.1 was said to have arrested the accused and seized M.O.1 three railway fish plates from his possession under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list, examined the accused and recorded his statement under Ex.P.3 in the presence of the mediators.

(iii)As seen from the language employed in section 3(a) Railway

Property (Un-lawful possession) Act 1966, the prosecution has to prove that the property in question should be railway property; it should be reasonably suspected of having been stolen or unlawfully obtained and it should be found or proved that the accused was or had been in possession of that property.

(iv)The evidence of P.W.1 is in consonance with the averments in the complaint. It is evident from the evidence of P.W.1 that on 01-02- 2018 at about 13-40 hours, at K.M.No.638/32-34 near closed LC Gate

No.429 between SLO-PAP, he arrested the accused while he was found in possession of Railway property i.e.,M.O.1 three railway fish plates and seized the same from his possession under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list in the presence of the mediators P.W.2 & L.W.3

S.Yesu Babu and later he examined the accused and recorded his statement under Ex.P3.

v)It is also evident from the evidence of P.W.1 that during the course of enquiries, on 05.02.2018 he received ExP.4 theft report from

L.W.4 K.Srinivas, Senior Engineer, P.Way, Pithapuram about missing of

M.O.1 Property; on the same day, he produced the said property before the said Senior Section Engineer, P.Way for certification and accordingly 1 4 he examined the same and issued Ex.P.5 certificate to the effect that

M.O.1 property belonged to Indian Railways used in Engineering

Department for track maintenance; and on 06-02-2018, he examined and recorded the statements of the mediators P.W.2 and L.W.3 S.Yesu

Babu under Exs.P.6 & P.7 respectively.

(vi)The above evidence of P.W.1 is corroborated by P.W.2, one of the mediators, in respect of arrest of the accused and seizure of

M.O.1 three railway fish plates from his possession under cover of Ex.P.1

Panchanama and Ex.P.2 seizure list and recording of the statement of the accused under Ex.P.3. Nothing is elicited from the cross examination of P.Ws.1 and 2 to discredit their testimony. It is simply suggested to

P.Ws.1 and 2 that nothing was seized from the possession of the accused under the cover of Ex.P.1 and that the accused was falsely implicated in this case for statistical purpose. They denied the said suggestion. No enmity is suggested to PW.2, who is an independent witness to disbelieve his evidence. It is simply suggested to P.Ws.1 & 2 in their cross examination that the mediators in this case are the vendors in Railway Station and the signaturesof the accused were obtained on the statements by force and threat. They denied the said suggestion. As seen from Ex.P.5 property certificate, M.O.1 three railway fish plates are belonged to Indian Railways.

(vii) The Hon’ble Apex Court in Balakishan A.Devidayal Vs. State of Maharashtra reported in 1980 CRL.L.J.1424, it was held as follows:

“In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the code.

Particularly, he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the code, which has been held to be the clinching attribute of an investigating ‘police officer’. Thus, judged by the test laid down in Badku Jyoti

Savant’s case, which has been consistently adopted in the subsequent decisions noticed above. Inspector Kakade of the RPF could not be deemed to be a ‘police officer’ within the meaning of Section 25 of the

Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.” 1 5

(viii)In the light of the above decision, the confessional statement of the accused marked as Ex.P.3 is admissible in evidence.

The confessional statement of the accused coupled with the evidence of

P.Ws.1 & 2, Ex.P.1 Panchanama and Ex.P.2 seizure list clearly established the fact that M.O.1 three railway fish plates have been recovered from the possession of the accused. So an inference can be drawn that the statement of the accused is made voluntarily.

(ix)As per Section 114 (a) of Indian Evidence Act, a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. But there was no explanation rendered by the accused for such possession.

(x)The evidence on record inspires the confidence of the Court to believe the same. Basing on the evidence on record, in the light of the above decision, it can be safely concluded that the accused has committed the offence under section 3 (a) of Railway Property (Unlawful

Possession) Act. Therefore, I hold that the complainant has proved its case against the accused for the charge U/sec.3 (a) of Railway Property (Unlawful Possession) Act, beyond reasonable doubt. Accordingly this point is answered.

09)In the result, the accused is found guilty of the offence

Under Section 3(a) of Railway Property (Unlawful possession) Act and convicted Under Section 248(2) of Cr.P.C.

Typed to my dictation by the Stenographer, corrected and

pronounced by me this the 27th day of April, 2018.

Sd/A.Ramachandra Rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

10) When the accusedis heard on the question of sentence to be imposed on him, he pleaded mercy. He submits that he is a bachelor and that he has been living by doing coolie work. He further submits that he has not committed any offence previously and that he has been in jail for the last three months as he has no means to furnish sureties for his release on bail. He, therefore, prays to take a lenient view in sentencing him and release him treating the remand period already undergone by him as a sentence in this case. The learned counsel for the accused also submitted that the accused is not involved in a case of this nature previously and therefore, a lenient view may be taken in sentencing him. The learned Public Prosecutor of Railway Protection 1 6 Force has submitted that the accused is not involved in any other offence and this is the first offence committed by him.

11)The offence Under Section 3(a) of RP (UP) Act, 1966 is punishable for first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the 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 One Thousand rupees.

12) The property involved in this case is worthRs.

1,500/- (Rupees one thousand and five hundred only). The learned

Counsel for accused has submitted that the accused is not involved in any other cases and that he is not convicted by any other court previously. As the offence committed by the accused is in respect of the railway property, I feel that it is not a fit case to invoke the provisions of

Probation of Offenders Act.

13)Considering the submission of the accused and his counsel and also the learned Public Prosecutor, keeping in view the value of the property involved in this case I am inclined to take a lenient view in sentencing the accused.

14)Accordingly, the accused is sentenced to undergo simple imprisonment for three months for the offence U/Sec.3 (a) of RP (UP)

Act. The remand period from 01.02.2018 to 27.04.2018 shall be given set off U/s. 428 Cr.P.C. M.O.1 three railway fish plates shall be returned to the concerned Railway Authority under proper acknowledgment and report compliance after appeal time is over.

15)The accused is informed about his right to prefer an appeal against this judgment and he is also informed that if he has no means to engage an advocate to prefer an appeal, he is at liberty to approach

Mandal Legal Services Authority for free legal aid.

Typed to my dictation by Stenographer, corrected and

pronounced by me in open court on this the 27th day of April, 2018.

Sd/-A.Ramachandra Rao

II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE: None.

P.W.1/20.04.2018: D.V.K.Reddy, Sub-Inspector, RPF.

1 7 P.W.2/20.04.2018: K.Raju, Mediator.

EXHIBITS MARKED.

FOR PROSECUTION : FOR DEFENCE: Nil Ex.P.1/01.02.2018: Panchanama. Ex.P.2/01.02.2018: Seizure list. Ex.P.3/01.02.2018: Statement of the accused. Ex.P.4/05.02.2018: Theft Report. Ex.P.5/05.02.2018: Case Property Certificate. Ex.P.6/06.02.2018: Statement of P.W.2, Mediator. Ex.P.7/06.02.2018: Statement of L.W.3 S.Yesu Ratnam, Mediator. No. of material objects marked:- M.O.1: Three Railway Fish Plates. Sd/- A.Ramachandrarao. II-Metropolitan Magistrate for Railways, Vijayawada. Camp court at Rajahmundry. //True copy //

II-Metropolitan Magistrate for Railways, Vijayawada. Camp court at Rajahmundry 1

1

IN THE COURT OF THE II-METROPOLITAN MAGISTRATE FOR RAILWAYS,

VIJAYAWADA. AT CAMP COURT, RAJAHMUNDRY.

PRESENT: SRI A.RAMACHANDRA RAO,

II-METROPOLITAN MAGISTRATE

FOR RAILWAYS, VIJAYAWADA.

FRIDAY, THIS THE 27 th DAY OF APRIL, 2018.

C.C.No.65 of 2018

Between:- State Rep. by the Assistant Sub-Inspector, R.P.F. Post, Rajahmundry.

...Complainant.

And: Gorle Rajesh S/o Kantharao, Age: 33 years, Caste by Kapu, R/o Block No.361, Vambay Colony, Ajit Singh Nagar, Vijayawada, Krishna District.

...Accused.

This case coming on this day for final hearing before me in the presence of Public Prosecutor for the complainant and of Sri T.R.K. Srinivas, Legal Aid Counsel for the accused and the matter having been stood over for consideration, this court delivered the following::

J U D G M E N T

The Assistant Sub-Inspector, Railway Protection Force,

Rajahmundry, filed complaint against the accused for the offence Under

Section 3 (a) of R.P. (U.P.) Act in Crime No.06/2018 of RPF Post,

Rajahmundry, alleging as follows:

2)On 30-01-2018 at about 16-15 hours. while P.W.1,

K.Rajarao, Asst. Sub-Inspector, RPF, Rajahmundry, along with his staff was on rounds, near first lane of Shambhu Nagar, Rajahmundry, they found the accused carrying one basket on his cycle in a suspicious manner. On suspicion, they detained the accused, secured mediators i.e., P.W.2 U.Nookaraju and L.W.3 K.Kanna Reddy and in their presence, when questioned about the contents of the said bag, the accused revealed his identity and confessed that the bag contained M.O.1 two

Railway fish plates purchased by him from an unknown offender for

Rs.200/- with an intention to sell the same to any vendor for profit. The accused failed to produce any voucher or receipt for lawful possession of the said property. Then, he arrested the accused after explaining the grounds of arrest and seized the said property along with M.O.2 cycle from his possession in the presence of the said mediators under cover of

Ex.P.1 Panchanama and Ex.P.2 seizure list. He examined the accused and recorded his statements under Ex.P.3. Later they brought the accused along with the case property to RPF Post, Rajahmundry and 1 2 registered a case in Cr.No.06/2018 U/Sec.3(a) of RP (UP) Act of RPF Post,

Rajahmundry and got produced the accused before the Court for remand.

During the course of enquiries, on 31.01.2018 P.W.1 received Ex.P.4 theft report from L.W.4 K.Srinivas, Senior Engineer,

P.way, Rajahmundry about missing of M.O.1 Property. On 01-02-2018 he produced the said property before the said Senior Section Engineer, for certification and accordingly he examined the same and issued Ex.P.5 certificate to the effect that M.O.1 property belonged to Indian Railways used in Engineering Department. On 04-02-2018, he examined and recorded the statements of the mediators P.W.2 and L.W.3

K.Kannareddy under Exs.P.6 & P.7 respectively. After completion of enquiries, he filed complaint against the accused. Hence the complaint.

3)This casewas taken cognizance of the offence Under

Section 3(a) of RP (UP) Act against the accused. On appearance of the accused, copies of all documents were furnished to him. The accused was examined Under Section 246 of Cr.P.C. for the alleged offence after dispensing with the enquiry under Sec.244 of Cr.P.C., on the memo filed by the learned public prosecutor as the record available discloses that there is a prima facie case against the accused for the alleged offence.

The accused pleaded not guilty of the offence. After hearing both sides, charge Under Section 3(a) of RP (UP) Act 1966 was framed against the accused, read over and explained the same to him in Telugu. He pleaded not guilty of the said charge and claimed to be tried.

4)In order to prove its case, the prosecution has examined

P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.O.1. The remaining witnesses cited in the memo of evidence were given up by the learned

Public Prosecutor.

5)After closure of the prosecution evidence, the accused was examined Under Section 313 Cr.P.C. explaining the incriminating material in the evidence of prosecution witnesses. He denied the same and reported no defence witnesses.

6)Heard the arguments of the learned Public Prosecutor for

Railway Protection Force and also the learned counsel for the accused.

Perused the record including oral and documentary evidence.

7) Now the point for determination is:

Whether the prosecution has proved its case against the accused for the charge Under Section 3(a) of R.P.

1 3 (UP) Act, 1966 beyond reasonable doubt?

8) POINT:-

(i)It is the case of the prosecution that on 30-01-2018 at about 16-15 hours, near first lane of Shambhu Nagar, Rajahmundry, the accused was found in possession of Railway property i.e., M.O.1 two railway fish plates without any valid receipt or voucher and thereby he committed an offence punishable U/s. 3(a) of R.P.(U.P.) Act. The case of the accused is total denial of the case of the prosecution.

(ii)As already stated above, in order to bring home the guilt of accused for the charge framed against him, the prosecution has examined P.Ws.1 & 2 and got marked Exs.P.1 to P.7 and M.O.1. P.W.1 is the investigating officer in this case. P.W.2 is one of the mediators in whose presence P.W.1 was said to have arrested the accused and seized M.O.1 two railway fish plates from his possession under cover of

Ex.P.1 Panchanama and Ex.P.2 seizure list, examined the accused and recorded his statement under Ex.P.3 in the presence of the mediators.

(iii)As seen from the language employed in section 3(a) Railway

Property (Un-lawful possession) Act 1966, the prosecution has to prove that the property in question should be railway property; it should be reasonably suspected of having been stolen or unlawfully obtained and it should be found or proved that the accused was or had been in possession of that property.

(iv)The evidence of P.W.1 is in consonance with the averments in the complaint. It is evident from the evidence of P.W.1 that on 30-01- 2018 at about 16-15 hours, near first lane of Shambhu Nagar,

Rajahmundry, he arrested the accused while he was found in possession of Railway property i.e.,M.O.1 two railway fish plates and seized the same from his possession under cover of Ex.P.1 Panchanama and Ex.P.2 seizure list in the presence of the mediators P.W.2 & L.W.3

K.Kannareddy and later he examined the accused and recorded his statement under Ex.P3.

v)It is also evident from the evidence of P.W.1 that during the course of enquiries, on 31.01.2018 he received Ex.P.4 theft report from

L.W.4 K.Srinivas, Senior Engineer, P.way, Rajahmundry about missing of

M.O.1 Property; on 01-02-2018 he produced the said property before the said Senior Section Engineer, for certification and accordingly he 1 4 examined the same and issued Ex.P.5 certificate to the effect that M.O.1 property belonged to Indian Railways used in Engineering Department; and on 04-02-2018, he examined and recorded the statements of the mediators P.W.2 and L.W.3 K.Kannareddy under Exs.P.6 & P.7 respectively.

(vi)The above evidence of P.W.1 is corroborated by P.W.2, one of the mediators, in respect of arrest of the accused and seizure of

M.O.1 two railway fish plates from his possession under cover of Ex.P.1

Panchanama and Ex.P.2 seizure list and recording of the statement of the accused under Ex.P.3. Nothing is elicited from the cross examination of P.Ws.1 and 2 to discredit their testimony. It is simply suggested to

P.Ws.1 and 2 that nothing was seized from the possession of the accused under the cover of Ex.P.1 and that the accused was falsely implicated in this case for statistical purpose. They denied the said suggestion. No enmity is suggested to PW.2, who is an independent witness to disbelieve his evidence. It is simply suggested to P.Ws.1 & 2 in their cross examination that the mediators in this case are the vendors in Railway Station and the signaturesof the accused were obtained on the statements by force and threat. They denied the said suggestion. As seen from Ex.P.5 property certificate, M.O.1 two railway fish plates are belonged to Indian Railways.

(vii) The Hon’ble Apex Court in Balakishan A.Devidayal Vs. State of Maharashtra reported in 1980 CRL.L.J.1424, it was held as follows:

“In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the code.

Particularly, he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the code, which has been held to be the clinching attribute of an investigating ‘police officer’. Thus, judged by the test laid down in Badku Jyoti

Savant’s case, which has been consistently adopted in the subsequent decisions noticed above. Inspector Kakade of the RPF could not be deemed to be a ‘police officer’ within the meaning of Section 25 of the

Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.” 1 5

(viii)In the light of the above decision, the confessional statement of the accused marked as Ex.P.3 is admissible in evidence.

The confessional statement of the accused coupled with the evidence of

P.Ws.1 & 2, Ex.P.1 Panchanama and Ex.P.2 seizure list clearly established the fact that M.O.1 two railway fish plates have been recovered from the possession of the accused. So an inference can be drawn that the statement of the accused is made voluntarily.

(ix)As per Section 114 (a) of Indian Evidence Act, a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. But there was no explanation rendered by the accused for such possession.

(x)The evidence on record inspires the confidence of the Court to believe the same. Basing on the evidence on record, in the light of the above decision, it can be safely concluded that the accused has committed the offence under section 3 (a) of Railway Property (Unlawful

Possession) Act. Therefore, I hold that the complainant has proved its case against the accused for the charge U/sec.3 (a) of Railway Property (Unlawful Possession) Act, beyond reasonable doubt. Accordingly this point is answered.

09)In the result, the accused is found guilty of the offence

Under Section 3(a) of Railway Property (Unlawful possession) Act and convicted Under Section 248(2) of Cr.P.C.

Typed to my dictation by the Stenographer, corrected and

pronounced by me this the 27th day of April, 2018.

Sd/A.Ramachandra rao.

II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry.

10) When the accusedis heard on the question of sentence to be imposed on him, he pleaded mercy. He submits that he has wife and two children who depend upon him and that he has been living by selling onions. He further submits that he has not committed any offence previously and that he has been in jail for the last three months as he has no means to furnish sureties for his release on bail. He, therefore, prays to take a lenient view in sentencing him and release him treating the remand period already undergone by him as a sentence in this case. The learned counsel for the accused also submitted that the accused is not involved in a case of this nature previously and therefore, a lenient view may be taken in sentencing 1 6 him. The learned Public Prosecutor of Railway Protection Force has submitted that the accused is not involved in any other offence and this is the first offence committed by him.

11)The offence Under Section 3(a) of RP (UP) Act, 1966 is punishable for first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the 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 One Thousand rupees.

12) The property involved in this case is worth

Rs.1,000/- (Rupees one thousand only). The learned Counsel for accused has submitted that the accused is not involved in any other cases and that he is not convicted by any other court previously. As the offence committed by the accused is in respect of the railway property, I feel that it is not a fit case to invoke the provisions of Probation of Offenders

Act.

13)Considering the submission of the accused and his counsel and also the learned Public Prosecutor, keeping in view the value of the property involved in this case I am inclined to take a lenient view in sentencing the accused.

14)Accordingly, the accused is sentenced to undergo simple imprisonment for three months for the offence U/Sec.3 (a) of RP (UP)

Act. The remand period from 30.01.2018 to 27.04.2018 shall be given set off U/s. 428 Cr.P.C. M.O.1 two railway fish plates shall be returned to the concerned Railway Authority under proper acknowledgment and report compliance after appeal time is over. M.O.2 cycle shall be returned to the accused after appeal time is over.

15)The accused is informed about his right to prefer an appeal against this judgment and he is also informed that if he has no means to engage an advocate to prefer an appeal, he is at liberty to approach

Mandal Legal Services Authority for free legal aid.

Typed to my dictation by Stenographer, corrected and

pronounced by me in open court on this the 27th day of April, 2018.

Sd/A.Ramachandra rao II-Metropolitan Magistrate for Railways, Vijayawada. Camp Court at Rajahmundry 1 7

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE: None.

P.W.1/20.04.2018: K.Rajarao, Asst. Sub-Inspector, RPF. P.W.2/20.04.2018: U.Nookaraju, Mediator.

EXHIBITS MARKED.

FOR PROSECUTION : FOR DEFENCE: Nil Ex.P.1/30.01.2018: Panchanama. Ex.P.2/30.01.2018: Seizure list. Ex.P.3/30.01.2018: Statement of the accused. Ex.P.4/31.01.2018: Theft Report. Ex.P.5/01.02.2018: Case Property Certificate. Ex.P.6/04.02.2018: Statement of P.W.2, Mediator. Ex.P.7/04.02.2018: Statement of L.W.3 K.Kannareddy, Mediator.

No. of material objects marked:- Sd/A.Ramachandra rao M.O.1: Two Railway Fish Plates. II-Metropolitan Magistrate for Railways, Vijayawada. Camp court at Rajahmundry.

// True Copy// 1