Sri. P.Koteswara Rao

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IN THE COURT OF THE VI-ADDL. JUNIOR CIVIL JUDGE: AT

VIJAYAWADA.

Present: P.Koteswara Rao, B.A., LL.M., VI Addl. Junior Civil Judge, Vijayawada.

Friday this the 5 th day of May, 2017

O.S.No.596/2017

Between:

1. Mohammad Noorjahan

2. Mohammed Nasruddin

3. Mohammed Raffi

4. Mohammed Tajuddin

5. Mohammed Feroj….Plaintiffs

And

1. Kolakaluri Surya Kumari

2. Gandarapu Karuna Kumari ….Defendants

This suit is coming on 18-04-2017 before me for final hearing in the presence of Sri R.V.Rama Krishna, Advocate for the Plaintiffs and of Sri I.Murali Krishnadhar, Advocate for the Defendant No.1 and Sri Y.V.Kishore Babu, Advocate for the Defendant No.2 and upon hearing having stood over to this day for consideration, this court, delivered the following:

J U D G M E N T

1.This is a suit for permanent injunction restraining the defendants, their men, agents, henchmen, followers etc., from ever interfering with the peaceful possession and enjoyment over the plaint schedule property and for costs.

2.The brief averments of the plaint are that:

The plaintiffs are the absolute owners of the plaint schedule property having title, possession, enjoyment and the management of the same. The 1st plaintiff is the mother of plaintiffs No. 2 to 5. The plaintiffs further stated that their vendor by name Nuthakki Babu Rao and Nuthakki

Prabakar Rao have obtained a register Gift Deed from their mother by name

Nuthakki Rattamma, W/o. Philip on 12-01-2009 under a document bearing

No. 39/2009, registered in the office of Sub-Registrar, Nunna and subsequently the plaintiffs have purchased the plaint schedule property -2- from the said Nuthakki Babu Rao and Nuthakki Prabakar Rao of Penamaluru

Mandal, Krishna District upon valid sale consideration of Rs.1,98,000/- (Rupees one lakh ninety eight thousand only) under a Regd. Sale Deed bearing document No. 2848/2010, dated 21-12-2010 registered in the office of Sub-Registrar, Nunna and when they purchased the said property, the 5th plaintiff was being minor represented by his mother and natural guardian i.e., 1st plaintiff herein and now the 5th defendant has become a major.

Since the date of purchase of the plaint schedule property, the plaintiffs have been in peaceful possession and enjoyment of the suit property. It is further stated by the plaintiffs in the plaint that they have no other house in the said locality and they intended to make a construction of small ACC roofed house in the plaint schedule property and for which they have dumped sand, bricks and iron in the said property. The defendants are villagers of the Ambapuram and closely associated with the plaintiffs and used to demand the plaintiffs to sell away the plaint schedule property to the defendants and all the times the plaintiff did not oblige the same because they intended to make a construction in the suit schedule property and while so on 01-06-2016 at about 11.00 A.M., the defendants no.1 and 2 and their followers high handily tried to obstruct the construction work of the plaintiffs over the plaint schedule property by removing the said building material from the schedule property and the defendants are claiming themselves as they have right over the plaint schedule property. The plaintiffs further stated that in fact, the defendants are not having any possession, title over the schedule property at any point of time and due to interference of elders and neighbours, the defendants went away from the plaint schedule property by openly threatening the plaintiffs that they would come back again and dispossess the plaintiffs and remove the said raw material from the plaint schedule property and the -3- plaintiffs immediately lodged a complaint to concerned police, II Town

Police Station, Vijayawada on the same day and the police did not take any action against the defendants. As there was no other alternate remedy available to the plaintiffs, they are constrained to file the present suit seeking permanent injunction restraining the defendants and their men from ever interfering with the peaceful possession and enjoyment over the suit schedule property.

3.Therefore, it is prayed by the plaintiffs to decree the suit in their favour granting permanent injunction restraining the defendants and their men from interfering the plaintiffs peaceful possession over the plaint schedule property.

4.After issuance of summons, the defendants no 1 and 2 made their appearance through their advocates. The defendant no. 2 has filed a detailed written statement denying all the averments mentioned in the plaint and the contention of the defendants that there is no cause of action arisen to file above suit and the Plaintiffs hatched a plan and created Ex.A1 and A2 to grab the property of 1st defendant and her sister, which is a vacant site of an extent of four cents. The Defendant No.1 filed a memo adopting the written statement filed by the Defendant NO. 2 and brief averments of the written statement are as follows:

5.The defendants stated in their written statement that there was some disputes between defendants no 1 and 2 since long time and there is no talking terms between them. They further stated that Nuthakki

Ratnamma, W/o Philip who allegedly executed and registered settlement deed in the year 2009 in favour of the vendors of the plaintiffs without any right, possession and enjoyment over the said property of an extent of 193- 6 Sq.yards as per the Regd. Document bearing No. 39/2009, as such the vendors of the plaintiffs have also no right, possession and enjoyment over -4- the said property and they have no right to sell the part of the property i.e., suit schedule property, to the plaintiffs. The defendants further stated that the grand father of the 2nd defendant Todeti Davedu had got the house site of an extent of Ac.0-06 cents which includes the plaint schedule site at

Ambapuram Village and said Davedu have three sons viz., Jacob,

Jevaratnam and Kantaiah and after demise of Davedu his three sons got partitioned the said house site orally long back and father of the 2nd defendant by name jacob got 2 cents respectively as the 2nd defendant is only daughter of jacob, after demise of her parents, she got share of her father's site of an extent of 2 cents thereafter she got executed a settlement deed in favour of her two daughters on 15-01-2009 which was registered as document bearing number 52 of 2009 in the office of Sub-

Registrar, Nunna and the daughters of the 2nd defendant constructed two portions of tin shed in the said property and they are paying house taxes concerned authority and they also obtained electricity connection with regard to their property. And it is further stated in the written statement that the 1st defendant and her sister have 4 cents only out of 6 cents in

Survey Number 4-1, Ambapuram Village and the 1st defendant and her sister filed a suit against the 2nd defendant vide O.S.No.618 of 2009 with regard to plaint schedule survey number and suit was dismissed on merits after dismissal of the said suit, the defendant and her sister filed another suit vide O.S.No. 953 of 2011 against the 2nd defendant herein and her daughters with all false allegations and suit was dismissed by the Hon'ble III

Addl. Senior Civil Judge, Vijayawada on merits, and the defendants further stated that to grab the site of the 1st defendant and her sister which is vacant site admeasuring an extent of 4 cents, the plaintiffs and their vendors hatched a plan and created Exs. A1 and A2 and filed with plaint.

With the above submissions, the defendants prayed this court to -5- dismiss the suit with costs and interest of the justice.

Basing on the above said pleadings of the respective parties to the suit this court framed the following issues for trail:-

1) Whether the plaintiffs are in lawful possession and enjoyment over the plaint schedule property as on date of filing of suit?

2) Whether the plaintiffs are entitled for decree of permanent injunction against defendants as prayed?

3) To what relief?

6.To substantiate the contentions of the respective parties to the suit, during the course of the trial, the plaintiff No.1 was examined as P.W.1 and Ex.A1 to 3 were marked through her. Plaintiff No.4 was examined as

P.W.2 and Ex.A4 was marked through him. A third party was exaimned as

P.W.3 on behalf of the Plainitffs and no documents were marked. The

Defendants No.1 and 2 were examined as D.W.1 and D.W.2 and Exbt. B1 and B2 were marked though D.W.1 on their behalf.

7.Arguments heard,

8. ISSUES NO 1 AND 2 : These issues are inter related and taken up together for discussion of better appreciation.

The suit is filed by the plaintiffs against the defendants and from plaintiff side, the Plaintiff No.1 and 4 were examined as P.W.1 and P.W.2, against the defendants, who were examined as D.Ws. 1 and 2, for grant of permanent injunction restraining the defendants their men etc. from interfering with the plaintiffs' peaceful possession and enjoyment over the plaint schedule property. It is admitted by the respective parties to the suit that the plaint schedule property is a vacant site.

The case of the plaintiffs as per the P.W.1 is that Nuthakki Babu Rao and Nuthakki Prabakar Rao have obtained register gift deed in respect of property admeasuring 193.6 Sq.yards of open land situated at R.Sy number -6- 4-1, Ambapuram Village and Gram Panchayat, Krishna District from their mother by name Nuthakki Rathamma, w/o. Pillip on 12-01-2009 vide registered Gift Deed bearing document number 39/2009 registered in the office of Sub-Registrar, Nunna and out of the 193.6 Sq.Yards, the plaintiffs have purchased an extent of 66 Sq.yards i.e., suit schedule property from the said Nuthakki Babu Rao and Nuthakki Prabakar Rao vide a registered sale deed bearing document number 2848 of 2010, dated 21-12-2010 for a valid sale consideration of Rs.1,98,000/- and since then the plaintiffs are in peaceful possession and enjoyment over the suit schedule property.

On behalf of the plaintiffs, P.Ws. 1 and 2 were examined and Exs. A1 to A4 are marked. The Plaintiff No.1, who was examined as P.W.1, in her chief reiterated in the same lines of the averments in the plaint and Ex.A1 to A3 were marked through her. Ex.A1 and A2 are the regd. documents filed in support of the plaintiffs to establish their title over the plaint schedule property. As per Ex.A2, the Plaintiffs No.1 to 5 have purchased the suit property for a valid sale consideration from their vendors and through

Ex.A1, the vendors of the Plaintiffs got the property from their mother Rattamma through a Regd. Gift Deed and both the documents were marked in the examination of PW1 i.e. mother of the

Plaintiffs 2 to 4. Ex.A3 is the office copy of the report given by the first plaintiff to the police of II Town, Vijayawada

On going through the Exs. A1 and A2, those are the certified copies of the registered sale deed executed in favour of the vendors of the plaintiffs and another one is registered sale deed executed in favour of the plaintiffs by their vendors. Here the defendants are not questioning genuinity of

Ex.A1 and A2, their contention is only that the Smt. Nuthakki Rathamma has not shown any title of her over the property dealt under Gift Deed and she has not shown any flow of title on her in respect of suit schedule -7- property. The counsel for the plaintiff argued that the defendants are simply making the bald allegation and their allegations are baseless and no evidence is adduced in support their allegations.

The evidence of Plainitff` No.4, who was examined as P.W.2 reiterated the contents of the plaint and Ex.A4 was marked. To establish plaintiffs' possession over the plaint schedule property, the plaintiffs filed five photographs showing the plaint schedule property and the construction material dumped in the site, which were marked under one exhibit i.e.

Ex.A4 through P.W.2. P.W.3 was examined on behalf of the plaintiffs, and in his cross examination he clinchingly supported the possession of the plaintiffs over the plaint schedule property as on the date of filing of suit.

In contra to the contention of the plaintiffs, the defendants, who were examined as D.Ws. 1 and 2 and Ex.B1 and B2 were marked on their behalf.

In the evidence affidavit of D.W.1 she stated that her grandfather

Todeti Daveedu had got the house of an extent ofAc.0.06 cents, which includes the plainitf shcedule site at Ambapuram Village and the said

Daveedu had three sons viz., Jacob, Jeearatnam and Kanthaiah and after demise of Daveedu, his three sons got partitioned the said house site orally long back and the father of the 1st defendant Mr.Jab got two cents and the death of Mr. Jacob, the 1st defendant got share her fathers site of an extent of 2 cents. But she did not file any Gift Deed to support their contention.

The defendants filed Ex.B1 and B2 which are Judgment and Decree passed in O.S.No.953/2011 and same are not indicating either directly or otherwise any nexus to the suit schedule property. Further, the contention of the defendants is that the plaintiffs have no title or possession over the plaint schedule property in any manner. The Counsel for the Defendant argued that, as stated in the plaint One Smt. Rattamma W/o. Philip executed a -8- alleged will dead in favour of the vendors of the plaintiffs, but no where in the said alleged gift deed she mentioned about her title over the property or any nexus of title, where from she got the property, and the said document is null and void in the eye of law. Since the vendors of the plaintiff have no valuable right or title over the property under the gift deed, they can not alienate part of the said property i.e. suit schedule property in favour of the plaintiffs.

The counsel for the defendants further argued that the plaintiffs are never in the possession of the plaint schedule property and they further stated that the Ex.A4 (photographs) are not belongs to the schedule of property and those photographs were not filed along with the plaint and in fact, the said photographs are created for the purpose of this plaint and filed the same later and they never in the possession of the suit schedule property.

But in the cross examination of the D.W.1 she categorically admitted and stated that “The Plaint schedule property is vacant site. The

plaintiffs are constructing a house in the Plaint Schedule Property.

The Plainitffs came to the plaint scheule proerty once according to

me and cleared all the bushes over the same and went away. I

have not enquired with the plaintiffs for what purpose they came

to the plaint schedule property. I came to know about 3 years back

that the plainitfffs purcahsed the Plainit schedule porperty. I got

no connection with the suit dispute and I am unnecessarily arrayed

as party to this suit. I got no objection to raise structure by the

plainitffs in thePlaint schedule property. It is not true to suggest

that I am unnecessarily interfering with the plainitffs' possession

and ejoyment over the plaint schedule property.”

As per the evidence of P.W.3, D.W1 coupled with Ex.A3 and A.4, it is clear that the plaintiffs are in the possession of the suit schedule -9- property as on the date of filing of the suit.

The defendants filed a Memo of Citation and in that they relied on the decision given by the Hon'ble High Court of Andhra Pradesh reported in AIR 2010 AP 231 and in the said case, the Hon'ble High Court has delivered good decision, but the facts and circumstances of the case dealt by the

Hon'ble High Court in the said case is different from the facts and

circumstances of the case on hand.

The defendants have not filed any evidence apart from the Ex.B1 and

B2 in their support or against the plaintiffs.

It can be observed from the evidence of P.Ws. 1 to 3 and Ex.A1 to A4 that the plaintiffs are in lawful possession and enjoyment over the plaint schedule property and even as per the depositions of DW1, she categorically admitted that she came to know that the plaintiffs purchased the plaint schedule property 3 years back. She further deposed that the plaintiffs are constructing a house in the plaint schedule property. This clearly indicates that the plaintiffs are in the possession of suit schedule property as on the date of filing of the suit and Ex.A1 and Ex.A2 are showing that they are in legal possession in the plaint schedule property.

P.W. 3, who was examined on behalf of the Plaintiffs, categorically stated that he was present at plaint schedule property on 01.06.2016 ie. on the date of cause of action and when the defendants are interfering with the possession of the plaintiffs over the plaint schedule property, they have lodged a complaint with the concerned police.

Taking into consideration, the over all pleadings and the evidence let in by the respective parties to the suit, it is observed that the plaintiffs are in the legal possession of the plaint schedule property as on the date of filing of the suit and also the interference from the defendants with the -10- peaceful possession and enjoyment of the plaintiffs. In order to prevent the interference of the defendants in the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property, this Court is inclined to grant the relief of permanent injunction in favour of the plaintiffs restraining the defendants, their men etc., from interfering with the plaintiffs' peaceful possession and enjoyment over the suit schedule property.

In the light of the above discussion, I answered this issues No.1 and 2, in favour of the plaintiffs.

ISSUE NO.3

In view of answering Issues No.1 and 2 in favour of the plaintiffs, the suit is decreed.

In the result, suit is decreed in favour of the plaintiffs with costs granting permanent injunction restraining the defendants, their men etc., from interfering with the plaintiffs' peaceful possession and enjoyment over the plaint schedule property.

Dictated to the typist of this Court, corrected and pronounced by

me in the open Court on this the 5th day of May, 2017.

VI Addl. Junior Civil Judge, Vijayawada.

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Appendix of Evidence

Witnesses examined

For Plaintiffs: For Defendants:

Pw1 : Mohammad NoorjahanDW1 : Gandraapu Karuna Kumari Pw2 : Mohammed TajuddinDW2 : Kolakaluri Surya Kumari Pw3 : Shaik Kabir

Documents marked

For Plaintiffs:

Ex.A1:12-01-2009 Certified copy of the Gift Deed executed by Smt. N.Ratnamma in favour of N.Babu Rao and N.Prabhakara Rao vide Doc. No.39/2009 of SRO, Nunna regarding the plaint schedule prperty. Ex.A2 : 21-12-2010 Certified copy of the sale deed executed by N.Babu Rao and N.Prabakara Rao in favour of plaintiffs vide Doc.No.2848/2010 of SRO, Nunna regarding the plaint schedule property. Ex.A3 : 01-06-2016 Office copy of the report given by the first plaintiff to the police, II Town, Vijayawada. Ex.A4 : --Five photographs along with CD showing the plaint schedule property. For Defendants:

Ex.B1 : 30-03-2015 Certified copy of Decree Vide O.S.No.953/201 on the file of Hon'ble III Addl. Senior Civil Judge's Court, Vijayawada. Ex.B230-03-2015 Certified copy of judgment Vide O.S.No.953/2011 on the file of Hon'ble III Addl. Senior Civil Judge's Court, Vijayawada

VI Addl J.C.J., Vijayawada.

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