Sri V.Subba Reddy, M.L., S.J.F.C.M., for Rlys, GTL

In the court of the Special Judicial First Class Magistrate for Railways,

Guntakal.

Present:- Sri V.Subba Reddy, Special Judicial First Class Magistrate for Railways, Guntakal.

Friday, this the 21st day of April 2017

C.C.198 of 2016

Between:-

The Sub-Inspector of Police, Railway Police Station, Guntakal. (Crime No.123/2016 of Guntakal R.P.S., U/Sec.341, 353, 323 r/w 34 I.P.C.

….. Complainant.

Vs.

(1)Abdul Rawoof, (A.1) aged about 50 years, S/o Abdul Rahaman, R/o H.No.5/73-2, Porter lane, Guntakal, Ananthapuramu District.

(2)Syed Kareem, (A.2) aged about 45 years, S/o Late Syed Gafoor, R/o H.No.5/43-A, Porter lane, Guntakal, Ananthapuramu District.

(3)Shaik Khadar Vali, (A.3) aged about 24 years, S/o S.Jeelani, R/o D.No.4/29-A, Porter lane, Guntakal, Ananthapuramu District.

(4)Pathan Imran Khan, (A.4) aged about 25 years, S/o P.Buden Khan, R/o D.No.5/79, Porter lane, Guntakal, Ananthapuramu District.

(5)Pathan Jeelan Khan, (A.5) aged about 31 years, S/o Khaja Khan, R/o D.No.5/79-A, Porter lane, Guntakal, Ananthapuramu District.

(6)Mulla Zakeer, (A.6) aged about 46 years, -2-

S/o Late M.Abdul Gafoor, R/o D.No.6/212, Porter lane, Guntakal, Ananthapuramu District.

(7)Pathan Shanvaz Khan, (A.7) aged about 47 years, S/o P.Mahaboob Basha, R/o D.No.5/41, Porter lane, Guntakal town, Ananthapuramu District.

…... Accused.

This case is coming on 20-04-2017 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and Sri S.Younus

Ahammed, Counsel for the accused 1 to 7, and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Government Railway Police Station, Dhone

R.P.O.P, filed complaint against the accused 1 to 7 in Crime No.123/2016,

U/Sec.341, 353, 323 r/w 34 I.P.C.

2.The brief facts of the complaint are that on 01-11-2016 at about 07:30 hours at on platform No.6, opposite of Cell-Kitchen stall, Guntakal railway station, Guntakal Town and reported in the Police station on the same day at about 20:00 hours wherein the accused A.1 Abdul Rawoof (TTE/GTL) and 6 others of his relative A.2 to A.7 threaten, assaulted and beat the complainant

LW.1 P.Lakshminarayana along with along with six locopilots working at

Kachiguda railway station have been directed to attend D.T.T.C.(Diesel Training

Center) for 12 working days and they obtained reservation for seven members and four persons seats were they have released for four persons and three persons were wait listed for Kolhapur Express and when the train reached to

Nampalli railway station on 11:00 pm., then he requested on duty T.T.E.,

Ravikumar, to allot one berth at least one berth to him out of three wait listed passengers but he refused allot berth and also refused to entertained him to in

Kolhapur Express.

During the course of investigation in this case disclosed that the complainant LW.1 P.Lakshminarayana is a native of Hyderabad city and he along with his co employees were appointed as Senior Assistant Loco-pilots in

S.C.Railway, on 31-10-2016 LW.1 along with seven co-pilots were deputed for 12 days training at Diesel Traction Training center at Guntakal town and they -3- reserved berths in train NO.11303 of Kolhapur express but they got out of 7 only 4 seats in RAC i.e., 1,1 and RAC 3,3 remaining 3 persons under W/L 1,2,3 so

LW.1 P.Lakshminarayana requested to on duty T.T.E., for provide at least one seat to adjust remaining waiting list persons, but T.T.E., refused their prayers. Then

LW.1 P.Lakshminarayana again requested the same matter in write down on

EDP but the TTE did not done the same thing, mean while A.1 who is sitting in the same coach interfered and argued with LW.1 P.Lakshminarayana in a drunken state and abused him in a filthy language and threatended him how u can done your duty in Guntakal town he will see your end. After arrival of Guntakal

Railway Station, train was boarded at platform No.6 and the said accused A.1 phoned to A.2 to A.7 and later A.2 to A.7 came to platform No.6 and argued with

LW.1 P.Lakshminarayana and abused in a filthy language and also they abused other loco-pilots who are co-pilots and beaten them with hands and legs. In this incident LW.1 P.Lakshminarayana, LW.2 K.B.K.Chari and LW.3 Bhupathi Reddy got dumb injuries on their several parts of bodies and then said A.1 to A.7 threatened to LW.1 P.Lakshminarayana and other colleagues like “How u live in

Guntakal town and they will kill him”. On seeing this surrounding peoples and other railway employees came there and rescued they were from the clutches of the accused A.1 to A.7.

3.Cognizance of offence U/Sec.341, 353, 323 r/w 34 I.P.C., of Railway Act was taken against the accused 1 to 7.

4.When the accused 1 to 7 were produced before the court, copies of documents were furnished to them and they were examined U/Sec.239 of

Criminal Procedure Code and they denied the accusation, a charge U/Sec.341, 353, 323 r/w 34 I.P.C., are framed read over and explained to them in Telugu, they pleaded not guilty to the charge and claimed to be tried.

5.On behalf of the Prosecution PW.1 to PW.15 were examined and marked

Ex.P.1 to Ex.P.16. On behalf of the defence, no witnesses were examined and no documents were marked.

6.After closure of the Prosecution evidence, the accused 1 to 7 were examined U/Sec.313 Criminal Procedure Code for the incriminating material appearing against them in the evidence of PWs.1 to 15 and they denied the accusation once again.

7.Heard both sides.

-4- 8.Now the point for determination is:-

Whether the Prosecution has established the guilt of the accused 1 to 7 beyond all reasonable doubt for the offence U/Sec.341, 353, 323 r/w 34 I.P.C.?

9.POINT:- In this case Prosecution has cited 16 witnesses but examined only 15 witnesses.

10.The evidence of PW.1 P.Lakshminarayana, Senior Assistant Locopilot at

Kachiguda Railway station is that on 31-10-2016 he along with six locopilots working at Kachiguda railway station have been directed to attend D.T.T.C.

(Diesel Training Center) for 12 working days and they obtained reservation for seven members and four persons seats were they have released for four persons and three persons were wait listed for Kolhapur Express and when the train reached to Nampalli railway station on 11:00 pm., then he requested on duty

T.T.E., Ravikumar, to allot one berth at least one berth to him out of three wait listed passengers but he refused allot berth and also refused to entertained him to in Kolhapur Express. Thereafter they three wait listed passengers boarded into general coach and traveled up to Guntakal and the train reached to

Guntakal railway station at 07:25 am., himself and three his colleagues to at front side of train and walking towards back and to go to his colleagues who were travelling in A/C coached in confirmed seats, when after passing some time at platform No.6, A.1 to A.7 and other persons farmed into unlawful assemble and attacked him with hands and legs and abused him in unparliamentary language. He received invisable injuries in all over body and also received nail injuries on his neck and hands. Then mean while other his colleagues

K.B.K.Chari, Bhupathi Reddy, Y.Sai Krishna, T.Surendra, Irsad Ali and B.Sandeep tried to separate us and the accused, but they also caused injuries on them by beating them with hands and legs. Then he lodged Ex.P.1 report to the police.

Police examined him and recorded his statement. Police also sent him to G.G.H.,

Guntakal for treatment. He noticed one of the accused Abdul Rawoof (A.1) along with one duty T.T.E., Abdul Rawoof and another T.T.E., Ravi Kumar were in complete drunken condition. They abused him in unparliamentary language at

Nampalli railway station when they requested to allot at least one seat to him.

And the evidence of Pws.2 to 6 are corroborate with the evidence of PW.1.

11.The evidence of PW.7 B.Sandeep, Assistant Loco-pilot at Kachiguda railway station is that on 31-10-2016, PW.1, PW.2, PW.3, PW.4 and PW.5 were loco-pilots working at Kachiguda railway station have been directed to attend D.T.T.C.

-5- (Diesel Training Center) for 12 working days and they obtained reservation for seven members and four persons seats were they have released for four persons and three persons were wait listed for Kolhapur Express and when the train reached to Nampalli railway station on 11:00 pm., then he requested on duty

T.T.E., Ravikumar, to allot one berth at least one berth to him out of three wait listed passengers but he refused allot berth and also refused to entertained him to in Kolhapur Express. Thereafter they three wait listed passengers boarded into general coach and traveled up to Guntakal and the train reached to

Guntakal railway station at 07:25 am., himself and three his colleagues to at front side of train and walking towards back and to go to his colleagues who were travelling in A/C coached in confirmed seats, when after passing some time at platform No.6, A.1 to A.7 and other persons farmed into unlawful assemble and attacked him with hands and legs and abused him in unparliamentary language. He does not receive any injury and the accused never attacked him.

He only witnessed the incident. Police examined him and recorded his statement.

12.The evidence of PW.8 M.Ravi Kumar, Manager at Stall at Guntakal railway station. He know A.1 and A.6. He does not know other accused. He does not know anything about the case facts. Police did not examined him. At this stage the learned A.P.P., prays the court the treat the witness examined but did not elicit anything to support the prosecution case.

13.The evidence of PW.9 M.Prasad, Manager at Stall at Guntakal railway station. He know A.1 and A.6. He does not know other accused. He does not know anything about the case facts. Police did not examined him. At this stage the learned A.P.P., prays the court the treat the witness examined but did not elicit anything to support the prosecution case.

14.The evidence of PW.10 S.Masthan, Stall Keeper at Cell-Kitchen at Guntakal railway station. Manager at Stall at Guntakal railway station. He know A.1 and

A.6. He does not know other accused. He does not know anything about the case facts. Police did not examined him. At this stage the learned A.P.P., prays the court the treat the witness examined but did not elicit anything to support the prosecution case.

15.The evidence of PW.11 A.Ramesh Babu, S.I., of Police, G.R.P.Station,

Guntakal is that on 01-11-2016 while his Head Constable Rahamthulla present in the police station, PW.1 came to the police station and presented report. Basing -6- on the same he registered a case in Cr.No.123/2016, U/Sec.341, 353, 323 r/w 34

I.P.C., and submitted original F.I.R., to the court which is Ex.P.5. Then he secured the presence of PW.1 examined him and recorded his statement. During the course of investigation he received C.E., file from his Head Constable. Thenhe secured he presence of Pws.2 to 10, LW.10 P.Sudhakar Kumar, LW.11 Golla

Srinivasulu and recorded their statements. The Head Constable Rahamthulla also proceeded to the scene of offence and examined the scene and drafted rough sketch which is Ex.P.6. On 04-11-2016 he sent requesition to

R.P.F.Officials for obtaining of C.C.Camera footage and he received the same which is Mo.1. On 16-11-2016 he examined and recorded the statement of

Prasad and Ravi Kumar. After receiving wound certificate, he filed charge sheet in the case.

16.The evidence of PW.12 Dr.K.Kalyana Chakravarthy, Civil Assistant Surgeon at Area Hospital, Guntakal is that on 01-11-2016 at about 09:50 pm., while he was on duty G.Bhupathi Reddy (PW.1) was brought by R.P.C.1106 and then he examined him and found no external injury on his body.

On the same day he also examined K.B.K.Chari (PW.2) and found the following injuries (1) Contusion injury over the lower part of occipital reagion of head measuring 2 cm X 2 cm., and aged of wound is 12 to 18 hours and he is the opinion that the above injuries is simple in nature might have been caused by blunt object.

On the same day he also examined P.Lakshminarayana (PW.3) and found the following injuries (1) Scratch obrasion over the left forearm above the wrist level of size 3 cm X 0.5 cm. (2) Scratch obrasion over the darsum of right hand of size 1 cm X 0.5 cm., he is the opinion that the above injuries are in simple in nature and might have been caused 12 to 18 hours due to coming in contact with nails.

17.The evidence of PW.13 Rahamthulla, Head Constable, G.R.P.station,

Guntakal is that on 01-11-2016 at about 20:00 hours while he was at police station, PW.1 came to the police station and presented Ex.P.1 report. Basing on the same he registered a case in Cr.No.123/2016,U/Sec.341, 353, 323 r/w 34

I.P.C., and submitted original F.I.R., to the court which is Ex.P.10.

18.The evidence of Pw.14 Sudheer Kumar, Supervisor at Cell-Kitchen at

Guntakal railway station. He does not know the all accused. He does not know anything about the case facts. Police did not examined him. At this stage the learned A.P.P., prays the court the treat the witness examined but did not elicit -7- anything to support the prosecution case.

19.The evidence of PW.15 G.Sreenivasulu, Vendor at Guntakal Railway station.

He does not know the all accused. He does not know anything about the case facts. Police did not examined him. At this stage the learned A.P.P., prays the court the treat the witness examined but did not elicit anything to support the prosecution case.

20.At this stage this court heard the arguments of both learned Assistant

Public Prosecutor for Prosecution and accused counsel.

It is the contention of the learned Assistant Public Prosecutor for

Prosecution that the prosecution examined Pws.1 to 15 and marked Ex.P.1 to

Ex.P.16 and prays the court to convict the accused for the offence U/Sec.341, 353, 323 r/w 34 I.P.C., as the prosecution proved guilt against the accused 1 to 7 beyond all reasonable doubt.

21.On the other hands it is the contention of the learned counsel for the accused that there are number of omissions and contradictions in the evidence of

Pws.1 to 7 and those contradictions would go to the root of the case and therefore the accused are entitled for acquittal. It is also his further contention that PW.8, PW.9 and PW.10 who are said to be eye witnesses at the time of incident who were present at the time of the incident did not support the prosecution case. Hence the evidence of interested witnesses Pws.1 to 7, he contends cannot be taken into consideration to convict the accused.

22.It is the further contention of the learned counsel for the accused that there is variation in between the evidence of PW.5 and the medical officer PW.12.

It is the contention of learned counsel that the evidence of PW.1 is that he did not receive any injuries but the medical officer deposed that he found on abrasion over left fore arm 3 X 5 cm., as per medical officer PW.12 no external injuries over the body of PW.3 Bhupathi Reddy but he deposed that he received selling injury on his right eye. There is also variation in the evidence of PW.2

K.B.K.Chari and the medical officer PW.12 who examined him.

23.This court is of the view that the variation between medical evidence and the evidence of Pws.1 to 3 is fatal to the prosecution case and the accused 1 to 7 are entitled for benefit of doubt.

24.It is the contention of the learned counsel for th accused that the -8- investigation officer A.Ramesh Babu did not conduct investigation in proper manner the same was elicited by him in cross-examination the witness admitted that the incident took place in Kolhapur Express at first. But he admitted in cross-examination that he did not examine the on-duty T.T.E., of Kolhapur

Express and he was cited as a witness. He also admitted in cross-examination that he did not examine co-passengers of the Kolhapur A/c Express and security constables who were in the train. He also admitted that there is C.C.Camera footage at Guntakal railway station but he did not cite the person who handed over C.C.Camera footage as a witness for the prosecution. This court is also of the view that non examination the above witnesses is fatal to the prosecution case.

25.The investigating officer Pw.12 Ramesh Babu also did not conduct test

Identification of the accused through Pws.1 to 7 as they are strangers at

Guntakal and they belong to Secunderabad where as the accused party belongs to Guntakal. This court is of the view that non conduct of Test Identification

Parade is fatal to the prosecution case.

26.In view of the discussion, I found the accused 1 to 7 not guilty for the offence U/Sec.341, 353, 323 r/w 34 I.P.C., and accordingly they are acquitted for the offence U/Sec.248(1) Cr.P.C. The bail bonds of the accused 1 to 7 shall stand discharged.

The Mo.1 which is in the custody of PW.11 is made absolute after appeal time is over and the other unmarked property if any shall be destroyed after appeal time is over.

Sd/- V.Subba Reddy.

Spl.Judl.Magistrate of First Class for Railways, Guntakal.

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution:- For Defence:- PW.1:- P.Lakshminarayana. -None - PW.2:- K.B.K.Chari. PW.3:- Bhupathi Reddy. PW.4:- T.Surendra. PW.5:- Shaik Irsad Ali. PW.6:- Sai Krishna. PW.7:- B.Sandeep. PW.8:- M.Ravi Kumar. PW.9:- M.Prasad. PW.10:- S.Masthan.

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PW.11:- A.Ramesh Babu. PW.12:- Dr.K.Kalyana. PW.13:- Rahamthulla. PW.14:- Sudheer Kumar. PW.15:- G.Sreenivasulu.

Exhibits Marked:

For Prosecution:- For Defence:-

Ex.P.1:- Report of PW.1 to Police. -Nil - Ex.P.2:- 162 Cr.P.C., statement of M.Ravi Kumar. Ex.P.3:- 162 Cr.P.C., statement of M.Prasad. Ex.P.4:- 162 Cr.P.C., statement of Shaik Masthan. Ex.P.5:- Original F.I.R. Ex.P.6:- Rough sketch. Ex.P.7:- Wound certificate. Ex.P.8:- Wound certificate. Ex.P.9:- Wound certificate. Ex.P.10:- Original F.I.R. Ex.P.11:- Train Ticket. Ex.P.12:- Train Ticket. Ex.P.13:- Train Pass. Ex.P.14:- Train Pass. Ex.P.15:- U/Sec.161 Cr.P.C., statement. Ex.P.16:- U/Sec.161 Cr.P.C., statement.

Material Objects Marked:

For Prosecution:- For Defence:-

Mo.1:- C.C.Camera footage. -Nil-

Sd/- V.S.R.

Spl.J.F.C.M.(Rly’s), Guntakal.

In the court of the Special Judicial First Class Magistrate for Railways,

Guntakal.

Present:- Sri V.Subba Reddy, Special Judicial First Class Magistrate for Railways, Guntakal.

Friday, this the 28th day of April 2017

C.C.165 of 2016

Between:-

The Assistant Sub-Inspector of Police, Railway Protection Force Post, Guntakal. (Crime No.03/2010 of Railway Protection Force Post, Guntakal, U/Sec.3(a) of Railway Property (Unlawful Possession) Act 1966).

….. Complainant.

Vs.

B.Ramesh, aged about 30 years, S/o B.Chinna Ramana, R/o D.No.Nil, Near Ammamma Gudi, Tilak Nagar, Guntakal, Ananthapuramu District.

…... Accused.

This case is coming on 03-03-2017 for final hearing before me in the presence of Public Prosecutor for Railways and Sri D.Krishna Prasad, Counsel for the accused, and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.The Assistant Sub-Inspector of Police, Railway Protection Force Post,

Guntakal filed complaint against the accused in Crime No.03/2010, U/Sec.3(a) of

Railway Property (Unlawful Possession) Act 1966.

2.The brief facts of the complaint are that on 06-02-2010 at about 09:00 am., while he along with his staff while on confidential watch noticed the accused while he was carrying one plastic bag and proceeding towards Guntakal Town.

On suspicion he detained the accused near old Railway Cabin, towards Bellary and called tow mediators and in their presence he examined the bag and fount it containing some broken pieces of C.S.T.-9 plates with as identified as Railway property. Value of the property is Rs.300/- approx. On enquiry the confessed to have committed theft of the above railway property near M.G., abandoned -2-

Railway cabin, Guntakal and he was taking the same to dispose at a scrap shop.

Then he seized the above property under the cover of mahazar int eh presence of mediators and he also recorded the confessional statement of the accused and then the accused and seized property was brought to R.P.F.Post, Guntakal and registered a case in Cr.No.03/2010, U/sec.3(a) of R.P.(UP) Act.

3.Cognizance of offence U/Sec.3(a) of Railway Property (Unlawful Possession)

Act 1966 was taken against the accused.

4.When the accused was produced before the court, copies of documents were furnished to him and he was examined U/Sec.246(2) Criminal Procedure

Code and he denied the accusation, a charge U/Sec.3(a) of Railway Property (Unlawful Possession) Act 1966 is framed read over and explained to him in

Telugu, he pleaded not guilty to the charge and claimed to be tried.

5.On behalf of the Prosecution PW.1 and PW.2 were examined and marked

Ex.P.1 to Ex.P.8. On behalf of the defence, no witnesses were examined and no documents were marked.

6.After closure of the Prosecution evidence, the accused was examined

U/Sec.313 Criminal Procedure Code for the incriminating material appearing against him in the evidence of PWs.1 and 2, and he denied the accusation once again.

7.Heard both sides.

8.Now the point for determination is:-

Whether the Prosecution has established the guilt of the accused beyond all reasonable doubt for the offence U/Sec.3(a) of Railway Property (Unlawful Possession) Act?

9.POINT:- In this case Prosecution has cited 5 witnesses but examined only 2 witnesses.

10.The evidence of PW.1 P.Nabi Rasool, A.S.I.P.F., R.P.F.Post, Guntakal is that on 06-02-2010 at about 09:00 am., while he along with his staff while on confidential watch noticed the accused while he was carrying one plastic bag and -3- proceeding towards Guntakal Town. On suspicion he detained the accused near old Railway Cabin, towards Bellary and called tow mediators and in their presence he examined the bag and fount it containing some broken pieces of

C.S.T.-9 plates with as identified as Railway property. On enquiry the confessed to have committed theft of the above railway property near M.G., abandoned

Railway cabin, Guntakal and he was taking the same to dispose at a scrap shop.

Then he seized the above property under the cover of mahazar int eh presence of mediators and he also recorded the confessional statement of the accused and then the accused and seized property was brought to R.P.F.Post, Guntakal and registered a case in Cr.No.03/2010, U/sec.3(a) of R.P.(UP) Act.

11.The evidence of PW.2 Chatta Raja, resident of Guntakal is that on 06-02- 2010 at about 09:00 am., at Bellary Gate, the accused was arrested and seized one C.S.T-9 plate weighing 24 kg from the possession of the accused under the cover of mahazar by A.S.I.P.F., R.P.F.Post, Guntakal. After preparation of the mahazar he attested therein. The A.S.I.P.F., R.P.F., Guntakal also recorded his statement and the statement of the accused.

13.At this stage this court heard the arguments of both learned Public

Prosecutor for Railways and the accused counsel.

It is the contention of the learned Public Prosecutor of Railways that in this case the prosecution examined PWs.1 and 2 and marked Ex.P.1 to Ex.P.8, on behalf of the defence no-body was examined and no document was marked and convict the accused for the offence U/Sec.3(a) of Railway Property (Unlawful

Possession) Act 1966 beyond all reasonable doubt.

14 .On the other hand the learned counsel for the accused submits that a false case has been foisted against the accused for statistical purpose and no railway property was seized as alleged by the prosecution from the possession of the accused and prays the court to acquit the accused.

-4-

It is further contention of the learned counsel for the accused that the confessional statement of the accused, Ex.P.3 is recorded by PW.1 under coercion and therefore it is hit by Sec.24 of Indian Evidence Act and also confession to the police officer is not admissible under Sec.25 of Indian Evidence Act as

R.P.F.Officer is also police officer.

It is also his contention that the case property is also not produced before the court which is also fatal to the prosecution case. This court of this of view that in sunderbhai's case discussed in this Judgment the Hon'ble Supreme court held that non production of seized property is not fatal to the prosecution case.

Hence the contention of the learned the accused is rejected.

It is further contention of the learned accused counsel that as per Sec.3(a) of R.P.(UP) Act 1966 the three essential ingredients to constitute the gift of the offence are (1) That the accused has been in possession of railway property (2) The said property was seized from the accused and (3) It is reasonably suspected of having been stolen or unlawfully obtained.

The learned counsel for the accused contends that as the above ingredients have not been proved by the prosecution, the accused is by marking

Ex.P.1 to Ex.P.8 the prosecution proved that the accused was in possession of railway property and the above said railway property was seized from the possession of the accused and also the prosecution proved that the property was unlawfully obtained by the accused and as such the accused is liable to be convicted. Hence the contention of the learned counsel for the accused that the prosecution did not prove the ingredients of Sec.3(a) of R.P.(UP) Act 1966 is rejected.

15. He relied upon a decision reported in Abdul Rashid, Revisionist V. State of

U.P., 1991 Crl.J.3065 and submits that fact of recovery of alleged railway property from adjoining land of the house of the accused is not conclusive proof of his possession over them and the prosecution must prove that recovered articles were in use and possession of the accused.

16.It is also the contention of the learned counsel for the accused that the confession given by the accused under Ex.P.3 document is not judicial confession and it is extra judicial confession and therefore the confessional statement of the accused Ex.P.3 recorded by PW.1 is weak piece of evidence and therefore it should not we accepted without corroboration and it is not safe to base to conviction by relying upon Ex.P.3 confessional statement of the accused.

-5- 17. In reply the learned Public Prosecutor for Railways relied upon a decision reported in A.I.R.1981 S.C.379 in between Balakishan A.Devidayal Vs.

State of Maharastra where in the Hon'ble Supreme Court held that “Officer of

Railway Protection Force making inquiry in respect of offence under

section 3 of Railway Property (Unlawful Possession) Act 1966 is not

Police Officer by interpreting Section25 of Indian Evidence Act and also

held that, the confession made to Railway Protection Force Officer by the

accused is admissible in evidence”. In this case also PW.1 is not police officer as per the law laid down by the Hon'ble Supreme Court, therefore Ex.P.3 confessional statement of the accused is admissible. Hence the contention of the learned counsel for the accused that Ex.P.3 confessional statement of the accused is not admissible under section 25 of evidence Act is rejected.

18.The learned Public Prosecutor for Railways further replied to the plea of the accused that no case property is produced before the court for that he relied upon a decision reported in A.I.R.2003 Supreme Court of India 639 in between

Sunderbhai Ambalal Desai Vs. State of Gujarath where in their lordships held that “ Owner of the article would not suffer because of its remaining

unused or by its misappropriation. Court or the police would not be

required to keep the article in safe custody. If the proper panchanama

before handing over possession of article is prepared, that can be used in

evidence instead of its production before the court during the trial. If

necessary, evidence could also be recorded describing the nature of the

property in detail. The jurisdiction of the court to record evidence should

be exercised promptly so that there may not be further chance to

tampering with the articles”. This court is of the view that non production of the railway property in this case is not fatal to the Prosecution case.

-6-

19.The contention of the learned Counsel for the accused that Ex.P.3 confessional statement of the accused is extracted from PW.1 under coercion and compulsion, this court is of the view that the accused never stated before anybody nor before the court during trial or at the time of their having remanded to the court nor before any Superior Officers of Railway Protection Force that their confessional statement are recorded forcibly by PW.1. Hence the contention of the learned counsel for the accused at this stage that the confessional statement of the accused is recorded forcibly under compulsion cannot be accepted.

20.In view of the above discussion that, the prosecution proved guilt against the accused beyond all reasonable doubt for the offence U/Sec.3(a) of R.P.(UP)

Act 1966 and accordingly the accused is convicted for the above offence

U/Sec.248(2) Cr.P.C.

Typed to my dictation, corrected and pronounced by me in Open Court, this the 28th day of April 2017.

Sd/- V.Subba Reddy.

Spl.Judl.Magistrate of First Class for Railways, Guntakal.

This court is not inclined to extend the benefit of the benevolent Provision of

Sec.4 of Probation of Offenders Act to the accused.

When asked about the quantum of sentence to be imposed to the accused he stated that he is a poor coolie and he had got small children and old parents and he is the sole bread winners of his family and prays the court to take lenient view.

Taking into consideration of plea of the accused, he is convicted for the offence U/Sec.3(a) of R.P.(UP) Act 1966 and sentenced to pay fine of

Rs.1000-00(Rupees one thousand only) in default to under go simple imprisonment for three months.

-7-

The unmarked property i.e., one broken C.S.T.9 plate, which is in the custody of R.P.F.Officials, Guntakal shall be returned to concerned Railway

Officials after appeal time is over.

Typed to my dictation, corrected and pronounced by me in Open Court, this the 28th day of April 2017.

Sd/- V.Subba Reddy.

Spl.Judl.Magistrate of First Class for Railways, Guntakal.

APPENDIX OF EVIDENCE

Witnesses examined For Prosecution:-For Defence:-

PW.1:- P.Nabi Rasool. -None - PW.2:- Chatta Raja.

Exhibits Marked:

For Prosecution:-For Defence:-

Ex.P.1:- Complaint. -Nil - Ex.P.2:- Panchanama. Ex.P.3:- Confessional statement of the accused. Ex.P.4:- Confessional statement of B.Raju. Ex.P.5:- Confessional statement of Chatta Raja. Ex.P.6:- Case property certificate. Ex.P.7:- Theft report. Ex.P.8:- Case property certificate.

Material Objects Marked:

For Prosecution:-For Defence:- -Nil- -Nil-

Sd/- V.S.R.

Spl.J.F.C.M.(Rly’s), Guntakal.

In the court of the Special Judicial First Class Magistrate for Railways,

Guntakal.

Present:- Sri V.Subba Reddy, Special Judicial First Class Magistrate for Railways, Guntakal.

Thursday, this the 06th day of April 2017

C.C.36 of 2016

Between:-

The Sub-Inspector of Police, Railway Police Station, Yerraguntla. (Crime No.24/2013 of Yerraguntla R.P.S., U/Sec.411 I.P.C.).

….. Complainant.

Vs.

Shaik Khadar Basha @ Cheddi, aged about 25 years, S/o Abdulla, R/o Near Bramhaiah Petrol Bunk, YS Nagar, Kadapa Town.

…... Accused.

This case is coming on 30-03-2017 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and Sri N.Hemadri,

Legal Aid Counsel for the accused, and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Government Railway Police Station,

Yerraguntla R.P.S., filed complaint against the accused in Crime No.24/2013,

U/Sec.379 or 411 of Indian Penal Code.

2.The brief facts of the complaint are that on 29-10-2013 LW.1 T.Krishna

Murthy sent to her parents house at Chennai by train and in return journey 0n 03-11-2013, LW.1 T.Krishna Murthy travelled by train No.11028, Chennai to

Mumbai Mail express, LW.1 T.Krishna Murthy boarded the said train at about 23:00 hours, Chennai and roomed in berth No.65 of S-3 coach after some time

LW.1 T.Krishna Murthy slept, when the said train reached Renigunta Railway

Station, LW.1 T.Krishna Murthy woke-up and observed his luggage and belongings exist the3n again LW.1 T.Krishna Murthy fell in sleep. On 04-11-2013 at about 05:30 hours when LW.1 woke-up and found that her hand bag was missed which contained Samsung rex mobile phone, spectacles, pen drive, cash of Rs.200/- all worth of Rs.5100/- at that time the train crossed Muddanuru -2-

Railway station. LW.1 T.Krishna Murthy searched her and there and found nothing, then she came to know that some un-known offenders committed theft of said bag and went away with booty, then LW.1 T.Krishna Murthy preferred complaint to trace her lost property and to hand over it. Based on the report of

LW.1 T.Krishna Murthy which was received along with a memo from the SRP,

Guntakal vide C.No.358/RCRB-GTL/2013 the RPHC-04 LW.4 R.Siddaiah of

Yerraguntla R.P.S., registered a case in Cr.No.24/2013, U/Sec.379 I.P.C., of

Yerraguntla R.P.S.

During the course of investigation, on 11-01-2015 the S.I., of Police,

Kadapa R.P.S., with assistance of his staff and two others, LW.5 C.Syamsundar

Reddy, S.I., of Police, Kadapa arrested the accused under the cover of confession cum seizure panchanama in presence of Panchayatdars LW.2 J.Vinod Kumar and

LW.3 M.Obulesu, and sent for remand to the Hon'ble Court for judicial custody in

Cr.No.02/2016, Cr.No.66/2014, U/Sec.379 I.P.C., of Kadapa R.P.S. On the same day in presence of same panchayatdars when police searched the accused, found two other black coloured Samsung mobile phones, when police asked about that mobiles, the accused voluntarily confessed and admitted his guilt in

Cr.No.24/2013, U/Sec.379 I.P.C., of Yerraguntla R.P.S.

3.Cognizance of offence U/Sec.411 I.P.C., was taken against the accused.

4.When the accused was produced before the court, copies of documents were furnished to him and he was examined U/Sec.239 of Criminal Procedure

Code and he denied the accusation, a charge U/Sec.411 of I.P.C., is framed read over and explained to him in Telugu, he pleaded not guilty to the charge and claimed to be tried.

5.On behalf of the Prosecution PW.1 to PW.5 were examined and marked

Ex.P.1 to Ex.P.3 and Mo.1. On behalf of the defence, no witnesses was examined and no documents was marked.

6.After closure of the Prosecution evidence, the accused was examined

U/Sec.313 Criminal Procedure Code for the incriminating material appearing against him in the evidence of PWs.1 to 5, and he denied the accusation once again.

7.Heard both sides.

-3- 8.Now the point for determination is:-

Whether the Prosecution has established the guilt of the accused beyond all reasonable doubt for the offence U/Sec.411 I.P.C.?

9.POINT:- In this case Prosecution has cited 6 witnesses but examined only 5 witnesses.

10.The evidence of PW.1 Sundari Krishnamurthy, resident of Chennai is that on 03-11-2013 he boarded in train No.11028 from Chennai to Guntakal and when the train reached near Muddanuru he found his bag was missing. Thereafter he searched for the same but in vain. On 04-11-2013 he lodged complaint Ex.P.1 report to the police. Police examined him and recorded his statement. His bag containing his spectacles, mobile phone of Samsung mobile phone and keys and after some time the police informed him that his mobile phone was recorded.

Mo.1 is Samsung mobile phone.

11.The evidence of PW.2 J.Vinod Kumar, Vendor at Kadapa Railway station.

During the course of investigation on 11-01-2016 the S.I., R.P.S., Kadapa called him and another mediator M.Obulesu to act as mediators and then they all proceeded to the S.B.I., A.T.M., Arogyamatha temple, Kadapa and seized three cellphones, one among the cellphone is the case property i.e., samsung mobile phone under the cover of mahazar and then himself, S.I., another mediators attested in the mahazar. Then the S.I., arrested the accused and took up further investigation into the offence.

12.The evidence of PW.3 R.Siddaiah, Head Constable, R.P.S., Yerraguntla is that on 25-11-2013 while he was present in the Yerraguntla railway police station, he received complaint along with endorsement from S.P., for registration and investigation. Basing on the complaint he registered a case in

Cr.No.24/2013, U/Sec.379 I.P.C., and submitted original F.I.R., to the court. Then -4- he secured the presence of complaint and examined her and recorded her statement. Thereafter his S.I., took up further investigation into the offence.

13.The evidence of PW.4 N.Sreekanth Reddy, Sub-Inspector of Police,

G.R.P.Station, Yerraguntla. During the course of investigation as the accused was lodged in Central-Jail, Kadapa in another crime, he filed a petition for

P.T.Warrant and obtained P.T., Warrant from the court and produced the accused in this crime. Thereafter after completion of investigation he filed charge sheet in this case.

14.The evidence of PW.5 C.Syamsundar Reddy, S.I., of Police, G.R.P.Station,

Kadapa. During the course of investigation on 11-01-2016 himself along with his staff and two mediators arrested the accused near Arogyamatha Temple, situated in the vicinity of Kadapa railway station and seized three mobile phones out of them two are concerned with the crimes of Kadapa G.R.P., Station and one belongs to G.R.P.Station, Yerraguntla in Cr.No.24/2013. The crime Number in which the above cellphone were seized are in Cr.No.2/2016 and Cr.No.66/2014, all are U/Sec.379 I.P.C., and then he arrested the accused and brought to

G.R.P.Station, Kadapa and thereafter send him Spl.J.F.C.M., for Railways,

Guntakal for judicial remand. The Yerraguntla railway police applied for

P.T.Warrant in Cr.No.24/2013 and produced the accused in the above crime.

After completion of enquiry PW.4 filed charge sheet against the accused before the Hon'ble court.

15.At this stage this court heard the arguments of both learned Assistant

Public Prosecutor for Prosecution and Legal Aid Counsel for the accused.

It is the contention of the learned Assistant Public Prosecutor for

Prosecution that the prosecution examined Pws.1 to 5 and marked Ex.P.1 to

Ex.P.3 and Mo.1 and prays the court to convict the accused for the offence -5-

U/Sec.411 I.P.C., as the prosecution proved guilt against the accused beyond all reasonable doubt.

16.It is also the contention of the learned legal aid counsel for the accused that a false case has been foisted against the accused for statistical purpose. It is also the contention of the accused counsel that the prosecution has to prove the following ingredients of 411 I.P.C., to convict the accused.

(1)Property in question is stolen property.

(2)Stolen property is recovered from the possession of the accused.

(3)Accused had knowledge that the property was stolen property and (4)Some other person was in possession of the property before the accused got possession;

This court is of the view that as the above ingredients have been fulfilled by the prosecution, the accused is liable for conviction.

17.The learned Legal Aid counsel also relied upon a decision reported in

A.I.R.1976 S.C.1097 where in their lordships held that “Presumption U/Sec.114

Evidence Act cannot be drawn unless the possession of the stolen property was recent” Court has to discretion to draw or not to draw this presumption.

18.It is the contention of the learned counsel for the accused that the accused is innocent and he was falsely implicated into the offence U/sec.411 I.P.C. The learned public prosecutor for Railways submits that the evidence of PW.5 S.I., of

Police namely C.Syamsundar Reddy is that on 11-01-2016 at about 06:00 am., he secured mediator PW.2 J.Vinod Kumar on proceeded to S.B.I., A.T.M.,

Arogyamatha temple, Kadapa and arrested the accused and seized three cellphones from the possession of the accused under the cover of mahazar. The evidence of PW.5 is corroborated by the evidence of PW.2 namely J.Vinod Kumar who also deposed that PW.2 seized three cellphones from the possession of the accused at S.B.I., A.T.M., Arogyamatha temple, Kadapa. One of the cellphones is -6- case property of Yerraguntla G.R.P., Police. Hence PW.4 applied for P.T.Warrant and produced the accused before the court. There are no contradictions in the evidence of PW.2 and PW.5. There is no any explanation from the part of the accused why he was false implicated into the offence. The evidence of PW.2 and

PW.5 inspires confidence of the court. Hence this court is of the view that the prosecution proved guilt against the accused beyond all reasonable doubt.

19.In view of the above discussion, I found the accused guilty for the offence

U/Sec.411 I.P.C., and accordingly he is convicted for the offence U/Sec.248(2)

Cr.P.C.

Typed to my dictation, corrected and pronounced by me in Open Court, this the 06th day of April 2017.

Sd/- V.Subba Reddy.

Spl.Judl.Magistrate of First Class for Railways, Guntakal.

This court is not inclined to extend the benefit of the Benevolent Provision of Sec.4 of Probation of Offenders Act to the accused.

When asked about the quantum of sentence to be imposed to the accused, the accused stated that he had got small children and old parents and he is sole bread winner of his family and prays the court to take lenient view.

Taking into consideration of the plea of the accused, and he is convicted and sentenced to under go simple imprisonment for period of three months. The detention period already undergone by the accused (i.e., 13-01-2016 to 30-01-2016 and 23-03-2017 to 06-04-2017) shall be given set off U/Sec.428

Cr.P.C.

The Mo.1 which is in the interim custody of PW.1 shall made absolute after appeal time is over and the other unmarked property if any shall be destroyed after appeal time is over.

Typed to my dictation, corrected and pronounced by me in Open Court, this the 06th day of April 2017.

Sd/- V.Subba Reddy.

Spl.Judl.Magistrate of First Class for Railways, Guntakal.

-7-

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution:-For Defence:-

PW.1:- Sundari Krishnamurthy.-None - PW.2:- J.Vinod Kumar. PW.3:- R.Siddaiah. PW.4:- N.Sreekanth Reddy. PW.5:- C.Syamsundar Reddy.

Exhibits Marked:

For Prosecution:-For Defence:

Ex.P.1:- Report of PW.1 to police. -Nil - Ex.P.2:- Original F.I.R. Ex.P.3:- Seizure Mahazar.

Material Objects Marked:

For Prosecution:-For Defence:-

Mo.1:- Samsung mobile phone. -Nil-

Sd/- V.S.R.

Spl.J.F.C.M.(Rly’s), Guntakal.

In the court of the Special Judicial First Class Magistrate for Railways,

Guntakal.

Present:- Sri V.Subba Reddy, Special Judicial First Class Magistrate for Railways, Guntakal.

Thursday, this the 06th day of April 2017

C.C.20 of 2016

Between:-

The Sub-Inspector of Police, Railway Police Station, Kadapa. (Crime No.66/2014 of Kadapa R.P.S., U/Sec.411 I.P.C.).

….. Complainant.

Vs.

Shaik Khadar Basha @ Cheddi, aged about 25 years, S/o Abdulla, R/o Near Bramhaiah Petrol Bunk, YS Nagar, Kadapa Town.

…... Accused.

This case is coming on 30-03-2017 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and Sri S.Younus

Ahammad, Counsel for the accused, and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Government Railway Police Station,

Kadapa R.P.S., filed complaint against the accused in Crime No.66/2014,

U/Sec.379 or 411 of Indian Penal Code.

2.The brief facts of the complaint are that on 25-11-2014 as part of his duty,

LW.1 D.Padmanabha Reddy came to Kadapa from Tirupathi, from Kadapa LW.1

D.Padmanabha Reddy went to Rayachoty Ghat road, after completion of his duty

LW.1 D.Padmanabha Reddy returned to Kadapa R.T.C., Bus stand and on the same day i.e., 25-11-2014 at about 23:30 hours, LW.1 D.Padmanabha Reddy came to Kadapa Railway station by an auto and made enquiry for a train to his journey i.e., from Kadapa to Renigunta and came to know that Chennai Egmore express train is there at about 00:45 hours then LW.1 D.Padmanabha Reddy purchased a general train journey ticket and visited general waiting hall which was on -2- platform No.1 of the Kadapa Railway station and kept his Samsung galaxy

SDuos-II mobile phone for charging, due to tiredness LW.1 D.Padmanabha Reddy went on sleep. After some time on 25/26-11-2014 at about 00:50 hours the said train arrived on platform No.1 with that noise LW.1 D.Padmanabha Reddy woke up and opened eyes, observed that his mobile phone which kept for charging was not found. The IMEI number of said mobile phone was 352159064779679 and with SIM Nos.9986755386 (Airtel), 8297232861(Vodafone). LW.1 D.Padmanabha

Reddy searched and made enquiries on said mobile phone at general waiting hall, platform No.1 and its surroundings but found nothing. Then LW.1 came to knew that some un-known offenders stolen his mobile phone which was kept for charging. Then LW.1 D.Padmanabha Reddy informed the matter to R.P.F.Staff who is on duty at platform No.1. LW.1 D.Padmanabha Reddy also visited new &

Old bus stands and searched for his lost mobile phone but its vain. Then LW.1

D.Padmanabha Reddy returned to Kadapa Railways station and came to knew that Rayalaseema Express train is there to go Tirupathi, by that train LW.1

D.Padmanabha Reddy went to his village. Due to busy schedule of his duty, on 01-12-2014 LW.1 D.Padmanabha Reddy came to Kadapa RPS and preferred a complaint and requested to take necessary action to trace-out his lost mobile phone. Based on the complaint from LW.1 D.Padmanabha Reddy the then SHO of

R.P.S., RPHC-648 LW.6 P.Ramachandrudu registered a case in Cr.No.66/2014,

U/Sec.379 I.P.C., of Kadapa R.P.S.

During the course of investigation, on 11-01-2015 the S.I., of Police,

Kadapa R.P.S., with assistance of his staff arrested the accused under the cover of confession cum seizure panchanama in presence of Panchayatdars LW.4

J.Vinod Kumar and LW.5 M.Obulesu, and sent for remand to the Hon'ble Court for judicial custody. On the same day in presence of same Panchatdars when police searched the accused, found two other black coloured Samsung mobile phones, when police asked about that mobiles, the accused voluntarily confessed and admitted his guilt in Cr.No.02/2016, U/Sec.379 I.P.C., of Kadapa R.P.S., and

Cr.No.24/2013, U/Sec.379 I.P.C., of Yerraguntla R.P.S.

3.Cognizance of offence U/Sec.411 I.P.C., was taken against the accused.

4.When the accused was produced before the court, copies of documents were furnished to him and he was examined U/Sec.239 of Criminal Procedure

Code and he denied the accusation, a charge U/Sec.411 of I.P.C., is framed read over and explained to him in Telugu, he pleaded not guilty to the charge and claimed to be tried.

-3- 5.On behalf of the Prosecution PW.1 to PW.4 were examined and marked

Ex.P.1 to Ex.P.3 and Mo.1. On behalf of the defence, no witnesses was examined and no documents was marked.

6.After closure of the Prosecution evidence, the accused was examined

U/Sec.313 Criminal Procedure Code for the incriminating material appearing against him in the evidence of PWs.1 to 4, and he denied the accusation once again.

7.Heard both sides.

8.Now the point for determination is:-

Whether the Prosecution has established the guilt of the accused beyond all reasonable doubt for the offence U/Sec.411 I.P.C.?

9.POINT:- In this case Prosecution has cited 7 witnesses but examined only 4 witnesses.

10.The evidence of PW.1 D.Padmanabha Reddy, resident of Pathasanambatla

Village of Chandragiri Mandal of Chittoor District is that on 25-11-2014 while he was sitting in General Waiting Hall at Kadapa Railway station at platform No.1 and he connected his mobile charger his napped for a while. After some time he noticed missing of his cellphone. He searched for the same but in vain. On the next day he lodged complaint to railway police, Kadapa.

11.The evidence of PW.2 J.Vinod Kumar, Vendor at Kadapa Railway station is that on 11-01-2016 on reliable information the S.I., R.P.S., Kadapa and his staff and himself and another mediators namely M.Obulesu proceeded to

Arogyamatha Church, near S.B.I., A.T.M., arrested the accused and seized three mobile phones from the possession of the accused in his presence and in the presence of Obulesu and then he attested in the mahazar. Then the S.I., of police, took up further investigation into the offence.

-4-

12.The evidence of PW.3 C.Syamsundar Reddy, S.I., of Police, G.R.P.Station,

Kadapa. During the course of investigation from LW.6 P.Ramachandrudu, H.C., and found that his investigation is on correct lines. On credible information on 11-01-2016 at about 06:00 am., while he was in the police station he received credible information about the accused and case property and arrested the accused at Arogyamatha Temple located in between Newly constructed

Collector's Office, Kadapa seized three cellphones from the possession of the accused under the cover of mahazar and then he brought the accused to

G.R.P.Station Kadapa and sent the accused to judicial custody and after completion of investigation he filed charge sheet in this case.

13.The evidence of PW.4 M.Ramachandrudu, Head Constable, G.R.P.Station,

Kadapa is that on 01-12-2014 while he was present in the police station PW.1 came to the police station and presented Ex.P.1 report. Basing on Ex.P.1 he registered a case in Cr.No.66/2014, U/Sec.379 I.P.C., and submitted original

F.I.R., to the court. Ex.P.3 is F.I.R. Then he secured the presence of PW.1, LW.1

Y.Jayaramireddy, LW.2 Narasimhulu and recorded their statements. And thereafter further investigation was done by S.I., G.R.P., Kadapa.

14.At this stage this court heard the arguments of both learned Assistant

Public Prosecutor for Prosecution and Legal Aid Counsel for the accused.

It is the contention of the learned Assistant Public Prosecutor for

Prosecution that the prosecution examined Pws.1 to 4 and marked Ex.P.1 to

Ex.P.3 and Mo.1 and prays the court to convict the accused for the offence

U/Sec.411 I.P.C., as the prosecution proved guilt against the accused beyond all reasonable doubt.

15.It is also the contention of the learned legal aid counsel for the accused that a false case has been foisted against the accused for statistical purpose. It -5- is also the contention of the accused counsel that the prosecution has to prove the following ingredients of 411 I.P.C., to convict the accused.

(1)Property in question is stolen property.

(2)Stolen property is recovered from the possession of the accused.

(3)Accused had knowledge that the property was stolen property and (4)Some other person was in possession of the property before the accused got possession;

This court is of the view that as the above ingredients have been fulfilled by the prosecution, the accused is liable for conviction.

16.The learned Legal Aid counsel also relied upon a decision reported in

A.I.R.1976 S.C.1097 where in their lordships held that “Presumption U/Sec.114

Evidence Act cannot be drawn unless the possession of the stolen property was recent” Court has to discretion to draw or not to draw this presumption.

17.It is the contention of the learned counsel for the accused that the accused is innocent and he was falsely implicated into the offence U/sec.411 I.P.C. The learned public prosecutor for Railways submits that the evidence of PW.3 S.I., of

Police namely C.Syamsundar Reddy is that on 11-01-2016 at about 06:00 am., he secured mediator PW.2 J.Vinod Kumar on proceeded to Arogyamatha Church near S.B.I., ATM and arrested the accused and seized three mobile cellphones from the possession of the accused under the cover of mahazar. The evidence of

PW.3 is corroborated by the evidence of PW.2 namely J.Vinod Kumar who also deposed that PW.3 seized three cellphones from the possession of the accused at

Arogyamatha church near SBI ATM. There are no contradictions in the evidence of PW.2 and PW.3. There is no any explanation from the part of the accused why he was false implicated into the offence. The evidence of PW.2 and PW.3 inspires confidence of the court. Hence this court is of the view that the prosecution proved guilt against the accused beyond all reasonable doubt.

-6-

18.In view of the above discussion I found the accused guilty for the offence

U/Sec.411 I.P.C., and accordingly he is convicted for the offence U/Sec.248(2)

Cr.P.C.

Typed to my dictation, corrected and pronounced by me in Open Court, this the 06th day of April 2017.

Sd/- V.Subba Reddy.

Spl.Judl.Magistrate of First Class for Railways, Guntakal.

This court is not inclined to extend the benefit of the Benevolent Provision of Sec.4 of Probation of Offenders Act to the accused.

When asked about the quantum of sentence to be imposed to the accused, the accused stated that he had got small children and old parents and he is sole bread winner of his family and prays the court to take lenient view.

Taking into consideration of the plea of the accused, and he is convicted and sentenced to under go simple imprisonment for period of three months. The detention period already undergone by the accused (i.e., 11-01-2016 to 30-01-2016 and 23-03-2017 to 06-04-2017) shall be given set off U/Sec.428

Cr.P.C.,

The Mo.1 which is in the interim custody of PW.1 shall made absolute after appeal time is over and the other unmarked property if any shall be destroyed after appeal time is over.

Typed to my dictation, corrected and pronounced by me in Open Court, this the 06th day of April 2017.

Sd/- V.Subba Reddy.

Spl.Judl.Magistrate of First Class for Railways, Guntakal.

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution:-For Defence:-

PW.1:- D.Padmanabha Reddy.-None - PW.2:- J.Vinod Kumar. PW.3:- C.Syamsundar Reddy. PW.4:- M.Ramachandrudu.

-7-

Exhibits Marked:

For Prosecution:-For Defence:

Ex.P.1:- Report of PW.1 to police. -Nil - Ex.P.2:- Mahazar. Ex.P.3:- Original F.I.R.

Material Objects Marked:

For Prosecution:-For Defence:-

Mo.1:- Cellphone. -Nil-

Sd/- V.S.R.

Spl.J.F.C.M.(Rly’s), Guntakal.

In the court of the Special Judicial First Class Magistrate for Railways,

Guntakal.

Present:- Sri V.Subba Reddy, Special Judicial First Class Magistrate for Railways, Guntakal.

Wednesday, this the 26th day of April 2017

C.C.111 of 2016

Between:-

The Sub-Inspector of Police, Railway Police Station, Dharmavaram. (Crime No.17/2016 of Dharmavaram R.P.S., U/Sec.411 I.P.C.).

….. Complainant.

Vs.

Anke Obulesu, aged about 25 years, S/o Late A.Bayanna, R/o Giriraju Colony, Near Potukunta PS, Dharmavaram town, Ananthapuramu District.

…... Accused.

This case is coming on 30-03-2017 for final hearing before me in the presence of Assistant Public Prosecutor for Prosecution and Sri S.Younus

Ahammed, Counsel for the accused, and the matter having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.The Sub-Inspector of Police, Government Railway Police Station,

Dharmavaram R.P.S., filed complaint against the accused in Crime No.17/2016,

U/Sec.379 or 411 of Indian Penal Code.

2.The brief facts of the complaint are that on 13-02-2016 at about 05:30 am., in running train No.17211 Kondaveedu Express, S-3 coach, berth No.52 on receiving transfer case file from Bangalore Rural R.P.S., through RCRB-GTL vide

C.No.139/RCRB-GTL, Dt:11-03-2016 of Superintendent of Railway Police a case re-registered in the R.P.S., on 19-03-2016 at about 19:15 hours. Wherein unknown culprit's committed theft mobile “Oneplus X No.7259907691” of the complainant while she was travelling from Machilipatnam-Yeswanthapur Railway stations. Basing on the complaint of Tanvi Goyal, while a case was registered in

Cr.No.17/2016, U/Sec.379 I.P.C., of Dharmavaram R.P.S., CI I (d) by RPHC.955

V.Mahadeva of Dharmavaram RPS and took up further investigation into.

-2-

During the course of investigation on 03-05-2016 at about 09:30 hours, he arrested the above said accused at APSRTC Bus stand, Dharmavaram town under the cover of mahazarnama, duly attested by the I.O., mahazardars and accused and seized one “1+ (Oneplus) No.7259907691 valued of Rs.17,049/- concerned in Cr.No.17/2016, U/Sec.379 I.P.C., of Dharmavaram R.P.S., and

Samsung Galaxy tab value of Rs.16,000/- concerned in Cr.No.17/2016, U/Sec.379

I.P.C., of Hindupur R.P.S.

3.Cognizance of offence U/Sec.411 I.P.C., was taken against the accused.

4.When the accused was produced before the court, copies of documents were furnished to him and he was examined U/Sec.239 of Criminal Procedure

Code and he denied the accusation, a charge U/Sec.411 of I.P.C., is framed read over and explained to him in Telugu, he pleaded not guilty to the charge and claimed to be tried.

5.On behalf of the Prosecution PW.1 to PW.4 were examined and marked

Ex.P.1 to Ex.P.3 and Mo.1. On behalf of the defence, no witnesses was examined and no documents was marked.

6.After closure of the Prosecution evidence, the accused was examined

U/Sec.313 Criminal Procedure Code for the incriminating material appearing against him in the evidence of PWs.1 to 4, and he denied the accusation once again.

7.Heard both sides.

8.Now the point for determination is:-

Whether the Prosecution has established the guilt of the accused beyond all reasonable doubt for the offence U/Sec.411 I.P.C.?

9.POINT:- In this case Prosecution has cited 7 witnesses but examined only 4 witnesses.

10.The evidence of PW.1 Purushotham, resident of Dharmavaram is that on 03-05-2016 at about 08:00 am., while he was present at R.T.C., Bus-stand,

Dharmavaram the police requested him to act as mediator and in his presence the accused tried to ran away and the police seized two cellphones among them -3- one cellphone is Samsung Galaxy tab. Another cellphone is one plus under the cover of mahazar in his presence and in the presence of another mediator and then the S.I., prepared mahazar and he attested therein.

11.The evidence of PW.2 M.Thabrej, S.I., of Police, G.R.P., Dharmavaram is that on 19-03-2016 while his H.C., received transferred F.I.R., from Bangalore through S.P., Guntakal for registration and investigation and then his H.C., registered a case in Cr.No.17/2016, U/Sec.379 I.P.C., and submitted original

F.I.R., to the court. Ex.P.1 is original F.I.R., and he also examined LW.1 Thanvi

Goyal and recorded his statement. During the course of investigation on 03-05- 2016 himself and S.I., of Police, G.R.P., Hindupur arrested the accused at R.T.C.,

Bus-stand, Dharmavaram and seized two cellphones from the possession of the accused and one cellphone is case property of present case and another is case property of Hindupur railway police in Cr.No.17/2016. After completion of the investigation arrested the accused and sent him to judicial custody and after completion of investigation he filed charge sheet in this case.

12.The evidence of PW.3 Thanvi Goyal, resident of Bangalore City is that on 13-02-2016 he boarded train No.17211 Kondaveedu Express in S-3 coach in berth No.52 at Machilipatnam to go to Bangalore. When the train reached near

Dharmavaram railway station he noticed missing of his cellphone and then he lodged Ex.P.1 report at Bangalore and the same was transferred to R.P.S.,

Dharmavaram on the point of jurisdiction. Mo.1 is cellphone.

13.The evidence of PW.4 V.Mahadeva, Head Constable, G.R.P.Station,

Dharmavaram is that on 13-02-2016 while he was present in the police station, he received transferred F.I.R., from S.R.P., Guntakal. Basing on the same he re- registered a case in Cr.No.17/2016, U/Sec.379 I.P.C., and submitted original

F.I.R., to the court. Then he secured the presence of PW.3 Thanvi Goyal -4- examined her and recorded her statement. Then he handed over further investigation to PW.2.

14.At this stage this court heard the arguments of both learned Assistant

Public Prosecutor for Prosecution and Legal Aid Counsel for the accused.

It is the contention of the learned Assistant Public Prosecutor for

Prosecution that the prosecution examined Pws.1 to 4 and marked Ex.P.1 to

Ex.P.3 and Mo.1 and prays the court to convict the accused for the offence

U/Sec.411 I.P.C., as the prosecution proved guilt against the accused beyond all reasonable doubt.

On the other hand it is the contention of the learned accused counsel that a false case has been foisted against the accused for statistical purpose.

15.It is also the contention of the learned legal aid counsel for the accused that a false case has been foisted against the accused for statistical purpose. It is also the contention of the accused counsel that the prosecution has to prove the ingredients to convict the accused for the offence U/Sec.411 I.P.C.

(1)Property in question is stolen property.

(2)Stolen property recovered form the possession of the accused.

(3)Accused had knowledge that the property was stolen property and (4)Some other person was in possession of the property before the accused got possession;

As the above ingredients have not been fulfilled by the prosecution, the accused is entitled for acquittal.

16.The learned counsel also relied upon a decision reported in A.I.R.1976

S.C.1097 where in their lordships held that “Presumption U/Sec.114 Evidence

Act cannot be drawn unless the possession of the stolen property was recent”

Court has to discretion to draw or not to draw this presumption.

S.410 I.P.C., and S.411 I.P.C., read as under.

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17. U/Sec.410 stolen property – Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as “stolen property”, whether the transfer has been made, or the misappropriation, or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.

18. U/Sec.411 Dishonestly receiving stolen property– Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

19.U/Sec.114 of Indian Evidence Act 1872 Court may presume existence of certain facts the Court may presume the existence of any act which it thinks likely to have happened, regard being had to the common cause of natural events, human conduct and public, and private business, in their relation to the facts of the particular case.

Illustrations.

The Court may presume-

(a)That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing then to be stolen, unless he can account for his possession.

20.The learned public prosecutor for Railways submits that in this case the prosecution examined four witnesses and among them the crucial witness PW.1

Purushotham who is said to be independent witness who witnessed seizing of two -6- cellphones among them one cellphone is Samsung Galaxy another is Tab from the possession of the accused on 03-05-2016 at about 08:00 hours, at R.T.C., Bus- stand, Dharmavaram. On perusal of the evidence of PW.1 he stated that he does not know the name and address particulars of the accused and he has no prior acquaintance with the accused. In cross-examination even the witness did not state the boundaries of the scene of offence. He admitted in cross examination that he attested over all documents at Railway police station, Dharmavaram. The prosecution did not choose to secure independent mediators of the locality at

R.T.C., Bus-stand, Dharmavaram. Hence it did not comply Sec.100(4) Cr.P.C.

Hence this court cannot believe the evidence of PW.1 to convict the accused for the offence U/Sec.411 I.P.C. Hence the accused is entitled for benefit of doubt.

21.In view of the above discussion, I found the accused not guilty for the offence U/Sec.411 I.P.C., and accordingly he is acquitted for the offence

U/Sec.248(1) Cr.P.C. The bail bonds of the accused shall stand discharged.

The Mo.1 which is in the custody of PW.3 is made absolute after appeal time is over and the other unmarked property if any shall be destroyed after appeal time is over.

Typed to my dictation, corrected and pronounced by me in Open Court, this the 26th day of April 2017.

Sd/- V.Subba Reddy.

Spl.Judl.Magistrate of First Class for Railways, Guntakal.

APPENDIX OF EVIDENCE

Witnesses examined

For Prosecution:-For Defence:-

PW.1:- Purushotham.-None - PW.2:- M.Thabrej. PW.3:- Thanvi Goyal. PW.4:- V.Mahadeva.

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Exhibits Marked:

For Prosecution:-For Defence:

Ex.P.1:- Original F.I.R. -Nil - Ex.P.2:- Seizure mahazar. Ex.P.3:- T.I.P., mahazar.

Material Objects Marked:

For Prosecution:-For Defence:-

Mo.1:- Cellphone. -Nil-

Sd/- V.S.R.

Spl.J.F.C.M.(Rly’s), Guntakal.