1C.C.161/2014
IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST
CLASS FOR RAILWAYS, NELLORE
Present: Smt K. Padmini,
Special Judicial Magistrate of First Class for Railways, Nellore
Thursday, this the 16th day of April, 2015
C.C.No.161/2014
Between:
State represented by SubInspector, Railway Protection Force,
G U D U R.
… Complainant
and
Pasam Sunil Kumar, aged 44 years, S/o Penchalaiah, R/o D.No.11/34, Ashok Nagar,
G U D U R.
S.P.S.R.Nellore District.
... Accused
This case is coming before me for final hearing on 09.04.2015 in presence of A.P.P for complainant and Sri.U.Srinivasulu Reddy and
K.Vasantha Kumar, Advocates for accused and the matter having been stood for consideration this court delivered the following JUDGMENT.
State represented by SubInspector, Railway Protection Force,
Gudur, filed complaint against the accused for the offense punishable under section 174 (a) of Railways Act, 1989.
Brief facts of the prosecution case are as follows: 1).On 05.08.2013 at about 11.40 am under the leadership of accused about 25 agitators entered to the Railway track from south side of Gudur railway station. The agitators in part of Samaikyandhra agitation squatted on the track to conduct rail roko in protest against bifurcation of Andhra Pradesh state and detained train No.12659 Gurudev express from Nagarcoil to Shalimar 2C.C.161/2014 at the entrance of platform No.II from 11.45 hours to 11.49 hours. The Station
Manager, Gudur, local police, GRP and RPF staff attended the incident and cleared the mob. The complainant M.Arjuna Rao, SubInspector/RPF/Gudur registered a case in Crime No.517/2013 u/s 174(a) of Railways Act, 1989 and took up inquiries. On the same day he has obtained a letter from Station
Manager, Gudur about train detention due to rail roko. During the course of investigation on 16.09.2014 the complainant issued summons to accused to attend him before RPF/Gudur on 24.09.2014. On the said date the accused attended before him. He has examined and recorded the confessional statement of accused. Then he arrested him and released on bail. On 22.10.2014 he has examined and recorded the statement of S.Babu RPF constable who accompanied him. After completion of inquiries he filed complaint before court to prosecute accused for the charge u/s 174 of Railways
Act, 1989.
2).After filing complaint before court after going through the material on record it was taken on file taking cognizance of offence u/s 174 of
Railways Act, 1989 and summons issued to accused. After appearance of accused before court copies of documents furnished to him u/s 207 crpc.
3).Accused was examined u/s 251 crpc explaining the accusation against him u/s 174 (a) of Railways Act, 1989. He denied the commission of offence, pleaded not guilty and claimed to the tried.
4).To prove the guilt of the accused prosecution has introduced PW 1 to PW3 and Ex.P1 to P7 marked.
5).After closure of prosecution evidence the accused was examined 3C.C.161/2014 u/s 313 crpc explaining him the incriminating evidence against him in prosecution witnesses evidence. He denied the same and reported no defence evidence. Hence defense evidence closed.
6).Heard arguments on both sides. The defence advocate filed memorandum of written arguments perused the material on record.
7).Now the point that arises for consideration is whether prosecutions is able to prove the guilt of accused beyond reasonable doubt for the offenses Under Section 174 (a) of Railways Act, 1989.
POINT:
8).It is the case of prosecution that on, 05.08.2013 at about 11.40 am under the leadership of accused around 25 agitators conducted rail roko in
Gudur railway station on track No.2 by squatting across the track and detained train No.12659 Gurudev express for four minutes and thus committed an offence u/s 174 of Railways Act, 1989.
9).To prove the same prosecution has introduced PW1 to PW3. PW1 is the complainant M.Arjuna Rao, SubInspector/RPF/Gudur. As per prosecution case he attended the spot on the date of incident and cleared the agitators from track. PW2 is S.Babu, RPF constable. He accompanied PW1 while bandobast duty at the time of agitation and assisted PW1 in clearing the mob. PW3 is R.G.Siva Sakthi Kumar, Station Manager, Gudur. As per the prosecution case as well as his evidence before court he also went to the spot and witnesses the incident. Later he gave train detention particulars to PW1.
All the three witnesses supported the prosecution case about rail roko agitation by accused and detention of train No.12659. All of them identified accused as 4C.C.161/2014 leader of agitators and his presence at the time of agitation.
10.)The learned APP submitted in his arguments that the prosecution is able to establish the agitation done by the agitators and it further established the identity of accused. Accused also voluntarily confessed the same fact. His confession is admissible in evidence. There is no rebuttal to the confession of accused. The defence also no where it is disputed that accused has not confessed at all and his confession is not voluntary. Hence his confession coupled with the evidence of PW 1 to 3 establishes the fact that he has conducted rail roko and detained a train. He is well reputed personality in their local area. He is known to all. He required no further introduction or identification. So the identity of accused by PW 1 to 3 is sufficient to prove his guilt. Therefore he is liable to for the charged offence.
11).The learned defence advocate submitted in memorandum of written arguments as well as in his oral arguments that, there is in consistency in the evidence of PW1 to 3 about the number of gathering and agitators, about persons of independent witnesses. As per PW2 other than agitators about 50 people gathered and local police were also on bando bast duty.
PW2 in his cross examination deposed that he did not state in his statements that Station Superintendent came to scene of offence. On duty staff of RPF went to scene of offence PW3 in his cross examination that he did not count the persons who gathered to see the agitators and further admitted that local police also came to railway station for bandobast duty. The defence counsel further argued that there are contradiction in the evidence of PW1,2 and 3.
PW1 stated that no police present them. PW 2 and 3 deposed that local police 5C.C.161/2014 present. All inconsistency and contradictions creates doubt about the presence of PW 1 to 3.
12).Regarding inconsistency in the evidence of material witnesses be placed his reliance on the judgment reported in AIR 1998 SC 2383, State of
Punjab Appellant Vs Rakesh Kumar alias Painta, respondent.
13).It was observed in 2nd para that there are number of infirmities in the evidence of eye witness. Hence her evidence could not have been accepted and could not have formed the bis for conviction of respondent.
14).He further relied on a judgment reported in 1995 crl.L.J 2817.
Between Natherram and others Vs State of Haryana when in it was observed that accused persons alleged to have criminally assaulted Head constable and two members of Railway police. Discrepancy in statement of injured witness, material and relevent particularly when no independent witnesses were examined. Accused would be entitled to benefit of doubt.
15). He further relied on AIR 1958 Patna 412. Dineswar Thakur V/s state when in it was observed that a statement made under sec 164 crpc can not be used as substantive piece of evidence. It can be used to cross examine the person who made it and the result may be to show that evidence of the witness is false, but that does not establish that what he stated out of court u/s 164 is true.
This court is unable to understand for what purpose he relied on this judgment” 16).He further relied an another judgment reported in AIR 1989 S.C.
1519. State of U.P Vs Madan Mohan and others. When in int was observed 6C.C.161/2014 that presence of eye witness at the place of occurrence found doubtful. No independent witness from locality whose presence would be naturals, examined, no explanation by prosecution regarding injury on person of one accused. Prosecution version about occurrence differing from version of dying declaration name of eye witness and some of accused not mentioned in dying declaration are fatal to prosecution case and thus acquittal upheld.
17).This case facts are no applicable to the present case on hand.
Hence this analogy can not be applied to the present case on hand.
18).He further argued that there is no proof filed before court that PW 1 and 2 were on duty. The prosecution also not furnished copy of list of documents to accused to place his proper defence.
19).He further argued that no test identification parade was conducted to identify accused. He relied on a judgment reported on 1999 Crl. L.J 4775
APHC.
20).Nampalli Anjaneyulu Vs State of A.P. The witnesses have not described the accused during their examination by police u/s 161 crpc. They gave some description when examined just before parade. It can not be considered as circumstances to strengthen evidence of identification in court.
21).This judgment is not relevant to the present set of facts as there is no test identification parade was conducted in this case to get identify the accused with witnesses. He relied on another judgment reported in 2004(1)
ALD Crl 538(AP). But he has not furnished text of this judgment.
22).He further argued that, there is delay in examining prosecution witnesses. It is not explained by prosecution. Hence benefit of doubt can be 7C.C.161/2014 extended to accused.
23).He relied a 1980 Crl. L.J.1269 Bhagwan and another Vs. State of
Madhaya Pradesh. Where in the incident taken place on 16.10.1972. The alleged eye witnesses were examined on 25.11.72, 1 ½ months after the date of incident. According to one witness he was kept confined by police for about two days before they took his statement. Another witness was also examined on 25.11.1972. There were omissions in his evidence. Therefore taking view that, there is no proper explanation for delay in examination of witness and omission in the evidence of eye witnesses the benefit was given to accused.
24).He further argued that non examination of independent witnesses is fatal to prosecution case. The complainant not examined any independent probable eye witnesses except his constable and Station Superintendent who are pocket witnesses to him. They were examined off late one year three months to the incident. Hence benefit of doubt can be extended to accused.
He placed his reliance on judgment reported in 1995 Crl.L.J.2817.
25).Narthern and others Vs State of Haryana, it was already discussed earlier regarding inconsistency and discrepancies in the evidence of eye witnesses non examination of available independent witnesses.
26).He further argued that confession of accused was also recorded with delay. It was not recorded before a witness. As per PW1 he recorded the confession of accused before his Personal Assistant. Then what prevented him to obtain signature of Personal Assistant of accused who was very much available at that time. So recording confession of accused is irregular. Hence 8C.C.161/2014 it can not be treated as substantive piece of evidence. It is weak piece of evidence. It requires corroboration.
27).In reply to the arguments of defence advocate the learned APP submitted that. Though the witnesses were examined after one year to the incident when there is no contradiction and omission when their evidence inspires the court it can be accepted. Mere reason that the witnesses were examined off late to the incident is not a grand for a acquitted. Accused did not deny his confession. At least a single suggest is not posed denying his confession. Accused is not on ordinary person. He is well reputed and leading person in society. The complainant is a SubInspector. So recording confession of accused by force, threat or coercion or in any other way is not possible. He can not record the confession of accused if it is not voluntarily.
Then what is the need to accused to give his confession that too at belated stage to the offence if he has not really participated in rail roko. May be the confession of accused it self is not sufficient to substantiate the conviction.
But to the confession of accused the evidence of PW 1 to 3 also supportive.
There is no eminacity to PW1 with accused. There is no hard and fast rule to record confession of accused particularly in the presence of a witness. Then non obtaining signature of Personal Assistant of accused on the confession of accused is not at all irregular. In these circumstances the evidence which is on record is sufficient to substantiate to the charge.
28).Now in the line of above arguments when the evidence on record is carefully examined, the available evidence is evidence of PW 1 to 3. PW1 is complaint who is SubInspector/RPF/Gudur. PW2 is his constable and PW3 9C.C.161/2014 is Deputy Station Superintendent, Gudur. No doubt all of them consistently deposed about rail roko agitation and presence of accused in agitation and detention of trains due to agitation. But admittedly the accused was not arrested at the time of agitation. As per the evidence of PW1 the name of the accused was mentioned in the complaint given by PW3 to PW1, which was marked as Ex.P1. The defence counsel bring to the notice of court the train number mentioned in Ex.P1 was strike off and another number was written above it. PW3 admitted the same fact. The defence counsel further bring to the notice of court about the gap between the lines particularly between 1st and 2nd line. It clearly shows the gap between 1st , 2nd and 3rd line are very less when compared to other lines. The 2nd line seems to be incorporated between 1st and 3rd line where in the name of the accused was noted.
29).As per the evidence of PW1 he along with his staff and PW3 and
PW2 went to scene of offence and cleared the track. In his cross examination he deposed that at that time police personnel were not there. He emphasized that himself PW 2 and 3 along went to scene of offence. Coming to the evidence of PW2 he deposed that PW1, himself and PW3 went them. In his cross examination he admitted that local police were also in bandobast duty.
As per the evidence of PW3 he admitted that local police also came to railway station for bandobast duty. He further deposed that he, his points man, Sub
Inspector, his two constables and two GRP constables and local police went to scene of offence. The evidence of all these witnesses clearly shows contradictions about the presence of GRP and local police at the time of rail roko agitation. As per the complaint which is filed by PW1 shows that 10C.C.161/2014
GRP/Gudur, Station Manager (PW3) local police and RPF staff attended the place of occurrence. But the evidence of PW1 is silent about this aspect. It is major contradiction. All the witnesses being official witnesses no doubt they will depose about the agitation and also identity of accused. Hence their evidence has to be scrutinized minutely to weigh their trust worthyness. In these circumstances the above said contradictions also counts to test their veracity.
30).Admittedly the train driver, guard, vendors in railway station, railway employers like licensed porters, sweepers, points man have chance to witness the incident. They would be natural witnesses to the incident. But
PW1 has not made any attempt to examine any independent witness. He may not arrest the agitators on the spot to avoid law and order problem. But he can examine the independent witnesses soon after the incident. The passengers may be floating public. They may not available. But the vendors, porters and other railway employees will be available. But no single witness was examined soon after the incident to the best reasons known to PW1. He has not chosen to examine PW 2 and 3 also soon after the incident.
31).As per the evidence of PW1 he has examined PW 2 and 3 22.10.2014 and 16.10.2014 respectively that too after arrest of accused on 24.09.2014 after lapse of about 14 or 15 months to the date of incident. He has not offered any explanation for making enquiries off late to the date of occurrence. But as per the evidence of PW2 two months after the incident
PW1 examined him. As per the evidence of PW3 immediately after the agitation he gave his statement of PW1. The evidence of these two witnesses 11C.C.161/2014 is contradiction to the evidence of PW1 regarding date of examination of witnesses. It creates doubt about trust worthyness of PW1. All these contradictions and the delay in recording the statements of witness who are pocket witness and accused off late 14 or 15 months to the incident clearly shows that the investigation is tainted one. The interpolation of name of accused in Ex.P1 and other contradictions creates doubt in the mind of court.
The witnesses being official witness and pocket witness the defence can not disprove the prosecution case. His politically though the accused has not denied the confession made to PW1. It can not be treated as admitted. The accused has every right even to maintain silence. The prosecution has to establish its case beyound reasonable doubt. Though for a moment even if it is accepted that the confession of accused is voluntarily one it can not be accepted as substantive piece of evidence and admission of accused to fasten guilty to accused. So it is a weak piece of evidence. It has to be supported by the evidence of independent witness. As discussed above the prosecution case suffers from lot of contradictions and them is extraordinary and unexplained delay in making enquiries that too with the packet witnesses. It shows the failure of inquiry officer in making proper enquiries at the earliest point of time soon after the offence. These contradictions and unexplained delay creates doubt and its benefit can be extended to accused and the mere confession of accused though made voluntarily to PW1 is not sufficient to substantiate charge against accused.
32).With the above reasoning I am of the opinion that the prosecution is failed to prove the guilt of accused beyound reasonable doubt for the leveled 12C.C.161/2014 charge against him. Hence he is liable to be acquitted. Accordingly the point is answered.
33).In the result I find the accused is not guilty for the offence u/s 174 (a) of Railways Act, 1989. Therefore he is acquitted u/s 255(1) crpc. The bail bonds of accused shall be in force for six months.
34)Typed to my dictation by the StenoTypist, corrected and pronounced by me in open court this the 16th day of April 2015.
Spl. Judl. Magistrate of I class for Railways, Nellore
APENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
Complaint:Accused:
PW1: M.Arjuna Rao PW2: S.Babu N I L PW3: R.G.Siva Sakthi Kumar
EXHIBITS MARKED FOR
Complaint:Accused: Ex.P1: Message of Station Manager, Gudur Ex.P2: Statement of P.Sunil Kumar Ex.P3: Statement of R.G.S.S.Kumar Ex.P4: Statement of S.Babu N I L Ex.P5: Photo in S.No.1 Ex.P6: Photo in S.No.2 Ex.P7: Memory Card
MATERIAL OBJECTS MARKED FOR
Complaint: Accused: N I L
Spl.Judl.Magistrate of I class for Railways, Nellore 13C.C.161/2014