Dilip Kumar Singh vs Sital Panjira & Anr.

Prasenjit Biswas, J:-

The impugned judgment and order of acquittal dated 28.02.2005 passed by the learned Sub-Divisional Magistrate, Durgapur in connection with Case No. CR 50/2002 is assailed in this appeal.

By passing the impugned judgment and order the Trial Court was pleased to acquit the respondent no.1/accused from the charge framed by the Trial Court under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to for short as the “R.P.(U.P.) Act”).

The learned Trial Court, while analysing the entire evidence on record, was pleased to observe that although the prosecution had succeeded in proving its case beyond all reasonable doubt on the basis of the oral testimonies of the witnesses and the documentary materials adduced, nevertheless, it entertained a doubt with regard to the nature and character of the seized articles. In particular, the learned Trial Court was of the view that from the deposition of the expert witness (PW5), it could not be conclusively established that the property recovered from the possession of the accused were, in fact, railway properties. On the basis of such perceived doubt, the learned Trial Court ultimately extended the benefit of doubt in favour of the accused and recorded an order of acquittal.

Being aggrieved by and dissatisfied with the said judgment and order of acquittal, the present appeal has been preferred at the instance of the appellant challenging the correctness, legality and propriety of the findings recorded by the learned Trial Court.

In the present case, the prosecution examined as many as six witnesses in support of its case. The prosecution also proved and exhibited relevant documents, including the seizure list and the expert report, as well as the seized articles themselves, which were duly marked as exhibits during the course of trial. The oral and documentary evidence led by the prosecution was sought to establish the factum of recovery of railway properties from the possession of the accused, as well as the circumstances under which such recovery was effected.

It is pertinent to note that the accused/respondent no. 1 neither adduced any oral evidence nor produced any documentary evidence in support of his defence. No witness was examined on his behalf, nor was any material brought on record to rebut the prosecution case or to explain the possession of the seized railway articles.

Despite such state of evidence, the learned Trial Court, while appreciating the prosecution case, accepted the testimonies of the prosecution witnesses in so far as the occurrence and recovery are concerned, but chose to extend the benefit of doubt solely on the ground of alleged insufficiency in the expert opinion regarding the nature of the seized property. It is this finding which has been assailed in the present appeal as being contrary to the evidence on record and not in consonance with the legal principles governing appreciation of evidence under Section 3 of the R.P.(U.P.) Act.

The instant case originated on the basis of a written complaint lodged by the de facto complainant, wherein it was, inter alia, alleged that on 31.01.2002, while he was on duty along with Constable R.D. Yadav and Constable A.K. Roy, they were engaged in night patrolling and checking within the railway yard premises. During the course of such duty, they noticed that one person was crossing the “kachha” road situated on the Northern side of the railway yard, proceeding from South to North, and was carrying certain materials on his shoulder in a suspicious manner. It is further stated in the complaint that the said person was intercepted and apprehended by the patrolling team. Upon being questioned, he disclosed his identity as the accused in the present case. A search of his possession was thereafter conducted, during which certain railway articles were allegedly recovered from him, namely, one connecting end pull rod of a railway wagon, one operating handled rod of a railway wagon measuring about 6½ feet in length, and one old and welded T-rod of a railway wagon measuring approximately 10 feet in length.

According to the prosecution case, the accused was unable to produce any document or authority in support of lawful possession of the said articles. Consequently, the said materials were seized on the spot by preparing a seizure list in accordance with law. On the basis of such recovery and seizure, the present case was initiated against the accused under Section 3(a) of the R.P.(U.P.) Act.

Thereafter, charge was framed against the accused under Section 3(a) of the said Act by the learned Trial Court. The contents of the charge were duly read over and explained to the accused in a language understood by him, to which he pleaded not guilty and claimed to be tried.

PW1, Subhash Prasad Singh, Assistant Sub-Inspector of Railway Protection Force and the de facto complainant in the present case, has supported in entirety the allegations made in the written complaint. In his deposition before the learned Trial Court, PW1 reiterated the prosecution version and stated that during night patrolling duty, one person was noticed moving suspiciously within the railway yard area carrying certain materials on his shoulder. Upon interception and search, one 10 feet long Tanga rod, being parts of wagon fittings, along with other railway components, were recovered from the possession of the accused. PW1 further stated that the accused failed to produce any valid document or authority in respect of lawful possession of the said materials.

The learned Trial Court, upon appreciation of the evidence of PW1, did not find any material contradiction between his deposition in Court and the contents of the written complaint lodged by him, thereby lending further assurance to his credibility and consistency.

Similarly, PW2, Ram Darshan Yadav, and PW3, Ashok Kumar Roy, who were members of the patrolling team accompanying PW1 at the relevant time, have fully corroborated the prosecution case. Both these witnesses supported the factum of interception of the accused, recovery of railway articles from his possession, and the preparation of seizure list on the spot. Their testimonies are consistent and in harmony with the version of PW1, and no material inconsistency or contradiction have been brought out in their cross-examination which could discredit their evidence.

PW4, Mukul Chottopadhyaya, Section Engineer of the Railway Department, also deposed before the Court. However, it is significant to note that this witness did not state anywhere that the seized articles were ever officially issued or entrusted to the accused for carriage from the yard. His evidence does not suggest any lawful authorisation in favour of the accused to possess the recovered railway materials.

In fact, the learned Trial Court, in the impugned judgment, observed that there is nothing in the evidence of PW1, PW2, PW3 and PW4 which could discredit or disbelieve the prosecution version. On the contrary, the Trial Court found that the said witnesses have consistently supported the prosecution case with regard to the interception of the accused, recovery of railway properties from his possession, and preparation of the seizure list.

It is submitted by Mr. Dhiraj Trivedi, learned Senior Advocate appearing on behalf of the appellant that the learned Trial Court failed to properly appreciate the true import and scope of Section 3 of the R.P.(U.P.) Act. Drawing the attention of this Court to the said provision, it is contended that Section 3 clearly postulates that any person who is found in possession of any railway property, which may reasonably be suspected of having been stolen or unlawfully obtained, shall be liable to punishment unless he is able to satisfactorily account for such possession and establish that the same was acquired lawfully. Thus, the statutory presumption operates against the accused once possession of railway property under suspicious circumstances is established, shifting the burden upon the accused to explain such possession.

Elaborating further, Mr. Trivedi, learned Advocate submits that in the present case the prosecution has examined as many as six witnesses, all of whom have consistently supported the prosecution case. Particular emphasis has been laid on the testimonies of PW1, PW2, PW3 and PW5. It is argued that PW1, being the de-facto complainant, not only proved the seizure list but also identified the seized articles in Court. His evidence has been fully corroborated by PW2 and PW3, who were witnesses to the seizure and who have also unequivocally identified the recovered materials. Their consistent and cogent testimonies, according to the learned Advocate, clearly establish that the accused was apprehended in possession of the seized articles.

It is further contended by the learned Advocate that PW5, an expert witness, has also supported the prosecution case. Though certain answers were elicited in his cross-examination to the effect that the materials shown to him did not bear any specific case number, it is submitted that such a statement does not dilute the evidentiary value of his expert opinion. Learned Advocate draws the attention of this Court to Exhibit-3, being the expert report, wherein upon careful examination of the seized materials, PW5 categorically opined that the said articles are railway properties belonging to the Indian Railways. It is thus argued that the expert opinion, read as a whole, clearly establishes the nature and identity of the seized materials.

Learned Advocate further submits that the learned Trial Court, upon proper appreciation of the oral and documentary evidence adduced by the prosecution, had in fact arrived at a categorical finding that the prosecution succeeded in proving its case beyond reasonable doubt. The evidence of PW1, PW2 and PW3, in particular, clearly demonstrated that the accused was found in possession of certain materials at the relevant time and that he failed to produce any valid documents or lawful authority justifying such possession.

However, it is contended that despite arriving at such a finding, the learned Trial Court fell into error by entertaining an unwarranted doubt as to whether the seized articles were railway properties. According to the learned Advocate, such doubt is wholly unfounded in view of the uncontroverted expert report (Exhibit-3) and the consistent prosecution evidence. It is argued that once the expert has opined that the seized materials are railway properties and the same has not been effectively discredited in cross-examination, there remains no scope for any reasonable doubt on that aspect.

In view of the above, learned Senior Advocate submits that the essential ingredients of Section 3 of the Act stand fully satisfied in the present case. The prosecution has successfully established that the accused was found in possession of railway property under circumstances giving rise to a reasonable suspicion of unlawful possession. Consequently, the burden shifted upon the accused to prove that such possession was lawful. It is contended that the accused has miserably failed to discharge this statutory burden, having produced no documentary or other credible evidence to explain lawful possession.

Accordingly, it is urged that the findings of the learned Trial Court, to the extent it doubted the character of the seized property, are perverse and contrary to the evidence on record, and the prosecution case ought to have been accepted in its entirety.

In support of his contention, learned Advocate relied heavily on the decision passed by the coordinate Bench of this Court in case of A.N. Pandey-vs- Gopal Das & Anr. reported in 2025 SCC OnLine Cal 2142, the decision rendered by the Hon’ble Apex Court in case of State of Maharashtra Vs. Vishwanath Tukaram Umale and Others reported in (1979) 4 SCC 23 (paragraphs 4 and 7) and decision passed by the learned Single Bench of the Allahabad High Court in the case of State of U.P. –vs-Ram Das reported in 1976 SCC OnLine All 57 (paragraph 6).

In continuation of his submissions, learned Senior Advocate appearing for the appellant contends that the materials available on record unmistakably establish that the articles recovered from the possession of the accused are, in fact, railway properties and that such possession was wholly unlawful. It is argued that the prosecution has been able to bring on record sufficient and cogent evidence to satisfy the foundational requirements of the statute, thereby attracting the presumption contemplated therein. Despite such evidence, the accused has failed to discharge the burden cast upon him by law, as he did not offer any plausible or reasonable explanation, much less produce any documentary proof, to justify his possession of the said railway articles.

It is further submitted that the testimony of PW5, the expert witness, lends substantial assurance to the prosecution case. His opinion, as reflected in the exhibited report, clearly indicates that upon examination, the seized materials were identified as properties belonging to the Railways. According to the learned Senior Advocate, this expert evidence reinforces the genuineness of the allegations levelled against the accused and remains unshaken in material particulars.

In light of the aforesaid evidence, it is vehemently argued that the prosecution has succeeded in proving its case beyond reasonable doubt. The learned Senior Advocate submits that the finding of acquittal recorded by the learned Trial Court is vitiated by a clear mis-appreciation of the evidence on record and a failure to consider the materials in their proper perspective. According to him, the Trial Court unjustifiably discarded reliable and corroborative evidence and entertained doubts which are neither reasonable nor borne out from the record.

It is thus contended that the impugned order of acquittal has resulted in a miscarriage of justice. The learned Senior Advocate urges that in the face of overwhelming evidence establishing unlawful possession of railway property by the accused, the acquittal cannot be sustained in law and warrants interference by this Court in exercise of its appellate jurisdiction.

Per contra, Mr. Avijit Mukherjee, learned Advocate appearing on behalf of the respondent no. 1/accused, has opposed the submissions advanced on behalf of the appellant and has sought to justify the order of acquittal passed by the learned Trial Court. It is contended that the very foundation of the prosecution case is doubtful, inasmuch as there was no complaint lodged by the concerned Railway department alleging theft of the seized articles. According to the learned Advocate, in the absence of any such complaint or allegation of theft, the prosecution has failed to establish that the articles in question were either stolen or unlawfully obtained.

It is further argued that the prosecution case itself indicates that the alleged recovery was made from a Railway yard, which is an open and accessible place, and not from any exclusive or concealed possession of the accused. In such circumstances, the element of conscious and unlawful possession, as required to bring home the charge, remains unproven.

Mr. Mukherjee learned Advocate also draws the attention of this Court to the seizure list and submits that the weight or proper measurement of the seized articles was not recorded by the seizing officers. This omission, it is contended, casts a serious doubt on the authenticity and credibility of the alleged seizure, thereby weakening the prosecution case.

Further reliance has been placed on the testimony of PW4, who was a Section Engineer posted at D.S.E.Y. at the relevant point of time. This witness, in his deposition, stated that the accused was working as a Khalashi and was entrusted with duties involving the carrying of goods from one place to another. Importantly, PW4 categorically admitted that no report was ever lodged with the Railway Protection Force regarding theft of any departmental property. He also stated that no complaint was received against the accused alleging negligence in duty or involvement in any theft. According to the learned Advocate, this evidence significantly undermines the prosecution’s allegation of unlawful possession.

The learned Advocate further invites attention to the cross-examination of PW5, the expert witness, wherein he admitted that the materials produced before him did not bear any case number and that it was not possible for him to state with certainty that the materials examined by him were connected with the present case. It is, therefore, contended that the expert opinion lacks probative value and cannot be relied upon to conclusively establish that the seized articles were railway properties.

On the strength of these submissions, it is argued that the prosecution has failed to prove beyond reasonable doubt that the articles allegedly recovered from the accused were indeed railway properties or that the accused was in unlawful possession thereof. It is thus contended that the learned Trial Court was fully justified in disbelieving the testimony of PW5 and in extending the benefit of doubt to the accused, resulting in his acquittal.

Lastly, learned Advocate submits that the decision of the Coordinate Bench in the case of A.N. Pandey (supra) has no application to the facts of the present case. It is argued that in the said case, the recovery was effected from the godown of the accused, thereby clearly establishing his exclusive possession. In contrast, in the present case, the alleged recovery was made from a Railway yard, which does not establish exclusive or conscious possession of the accused. Hence, the factual matrix being entirely different, the said precedent cannot be relied upon by the appellant.

It is further contended by the learned Advocate appearing on behalf of the accused/respondent no.1 that the reliance placed by the appellant on the decision in Vishwanath (supra) is wholly misplaced and the said judgment has no application to the facts and circumstances of the present case. It is argued that the ratio laid down in the said decision pertains essentially to the legal principles governing the framing of charge and the parameters required to be satisfied at that stage of the criminal proceeding.

According to the learned Advocate, the decision in Vishwanath (supra) was rendered in a completely different factual and procedural context, wherein the Court was primarily concerned with the threshold question as to whether a prima facie case existed for framing of charge against the accused. The principles enunciated therein, it is submitted, are confined to the limited scope of consideration at the stage of charge and cannot be stretched or applied to the stage of final adjudication after full-fledged trial, where evidence has been led by both sides and appreciated by the Trial Court.

Having heard the learned Advocates for the respective parties and upon due consideration of the materials available on record, this Court is of the considered view that the learned Magistrate, upon appreciation of the evidence adduced by the prosecution witnesses, particularly PW1, PW4 and PW6, had arrived at a clear finding that the prosecution succeeded in establishing its case beyond reasonable doubt and that the articles in question were, in fact, seized from the possession of the accused. However, despite recording such a finding, the learned Magistrate appears to have entertained a doubt with regard to the opinion of PW5, the expert witness, primarily on the ground that in his cross-examination he stated that it was not possible for him to specify the case in connection with which the materials were produced before him.

This Court finds that such a doubt, in the facts of the present case, was not justified in view of the contents of the expert report, which has been marked as Exhibit-3. A careful perusal of the said exhibit reveals that the expert, upon examination of the materials placed before him, categorically opined that the said articles were properties of the Indian Railways. The relevant portion of the report reads as follows:

From the aforesaid opinion, it is evident that the expert unequivocally identified the seized materials as railway property, further observing that such items are used for specific departmental purposes, are in serviceable condition, are not meant for auction, and are not ordinarily available in the open market. Thus, the intrinsic nature and character of the seized articles, as described in Exhibit-3, clearly establish that they are exclusively meant for use by the Railways.

In such circumstances, once the expert report substantiates that the articles seized from the possession of the accused are railway properties, and the learned Magistrate himself recorded a finding that the prosecution has proved the factum of seizure from the accused, it was incumbent upon the Court to apply the statutory presumption embodied under Section 3 of the R.P.(U.P.) Act. The said provision mandates that where a person is found in possession of railway property reasonably suspected of having been stolen or unlawfully obtained, the burden shifts upon such person to prove that the property came into his possession lawfully.

It is profitable to quote paragraph 4 of the case of Vishwanath (supra)

In the present case, there is nothing on record, either in the evidence or in the reasoning of the learned Magistrate, to indicate that the seized articles were of such a nature as could be lawfully possessed by a private individual or that they were not exclusively earmarked for use by the Railways. On the contrary, the prosecution witnesses have consistently established the search and seizure, and the learned Magistrate himself has accepted such evidence as credible and sufficient to prove the prosecution case.

In view of the above, this Court is of the opinion that once the prosecution had discharged its initial burden by proving recovery of railway property from the possession of the accused, the onus squarely shifted upon the accused to establish lawful possession of such property. In the absence of any such explanation or proof from the side of the accused, the necessary legal consequences ought to have followed.

Therefore, the failure on the part of the learned Magistrate to apply the statutory presumption under Section 3 and to draw the appropriate inference from the established facts amounts to a misapplication of law, thereby vitiating the impugned judgment.

Moreover, this Court finds that the learned Trial Court failed to appreciate the true scope and intent of Section 3 of R.P.(U.P.) Act. The statutory scheme under the said provision is explicit in laying down that once the prosecution establishes that the accused was found in possession of railway property under circumstances giving rise to a reasonable suspicion that such property was stolen or unlawfully obtained, the initial burden stands discharged. Upon such satisfaction, the onus shifts squarely upon the accused to prove that his possession of the said property was lawful.

In the present case, the foundational facts giving rise to such reasonable suspicion stood duly established at the conclusion of the search and seizure. The prosecution witnesses have consistently deposed regarding the recovery of the articles from the possession of the accused, and the learned Trial Court itself recorded a finding to that effect. Therefore, the statutory presumption under Section 3 stood attracted, and it was incumbent upon the accused to rebut the same by furnishing a cogent and credible explanation regarding lawful possession.

However, this Court finds that there is nothing on record to indicate that the accused discharged such burden at any stage of the proceeding. Even from the examination of the accused under Section 313 of the Code of Criminal Procedure, which could have lent support to the defence version, no material emerges to suggest that any plausible explanation was offered as to how the accused came into possession of the said railway property. The absence of any such explanation further strengthens the presumption against the accused.

Section 3 of the said Act clearly provides that whoever is found or proved to have been in possession of any railway property, reasonably suspected of having been stolen or unlawfully obtained, shall be liable for punishment unless it is proved that such property came into his possession lawfully. In the case at hand, the evidence on record, including the testimony of the expert witness (PW5) and the expert report marked as Exhibit-3, leaves no manner of doubt that the articles recovered from the possession of the accused are properties belonging to the Railways.

The testimonies of the prosecution witnesses have been found to be consistent, cogent and straightforward. There are no material contradictions or inconsistencies which would render their evidence unreliable. It is true that the prosecution witnesses are officials of the Railway Protection Force or employees of the Railways; however, that fact alone cannot be a ground to discard their testimonies. It is well-settled that the evidence of official witnesses cannot be disbelieved merely on the ground of their official status, unless there are specific reasons to doubt their credibility. In the present case, nothing has been elicited in their cross-examination to suggest any animus, bias or motive to falsely implicate the accused.

In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has successfully established its case against the accused beyond reasonable doubt. The learned Trial Court, therefore, was not justified in passing the impugned judgment and order of acquittal, which suffers from misappreciation of evidence as well as misapplication of the statutory provision.

Accordingly, the impugned judgment and order of acquittal dated 28.02.2005, passed by the learned Sub-Divisional Judicial Magistrate, Durgapur, in connection with Case No. CR 50/2002, is hereby set aside.

So far as the question of sentence to be imposed upon the respondent no.1/accused is concerned, this Court finds it necessary to take into consideration the long lapse of time since the occurrence. The offence in question relates back to 31.01.2002, and the record clearly indicates that the incident is more than twenty-four years old. In such circumstances, a pertinent question arises as to whether, at this distant point of time, it would be appropriate, just and equitable to direct the accused to undergo a sentence of substantive imprisonment.

It cannot be overemphasised that the concept of speedy trial is an integral and indispensable facet of criminal justice administration. The right to a speedy trial is no longer merely a procedural safeguard but has been recognised as a fundamental component of the right to life and personal liberty guaranteed under Article 21 of the Constitution of India. Prolonged delay in the final adjudication of criminal proceedings not only undermines the efficacy of the justice delivery system but also erodes the very foundation of fairness in criminal jurisprudence.

In the present case, the essence of justice, which lies in timely adjudication and effective enforcement of penal consequences within a reasonable time frame, stands substantially diluted due to the inordinate delay of nearly twenty-four years in reaching finality. Such an extraordinary lapse of time inevitably defeats the underlying objectives of criminal law, namely deterrence, reformation, and societal correction. It is well understood that punishment, to serve its intended purpose, must follow the finding of guilt within a reasonable proximity of time; otherwise, its character may transform from corrective justice into mere retribution, thereby losing its jurisprudential justification.

Upon consideration of the entire factual matrix, it is evident that the incident pertains to the year 2002 and the proceedings have remained pending for over two decades. During this long interregnum, the appellant/accused has been enlarged on bail and has enjoyed liberty throughout. It has not been brought to the notice of this Court that the appellant has been involved in any subsequent criminal activity or has misused the liberty granted to him during this extended period. The appellant has now reached an advanced age of about 74 years, which is also a relevant circumstance to be taken into account while considering the question of sentence.

In view of the aforesaid facts and circumstances, this Court is of the considered opinion that the ends of justice would be sufficiently met if, instead of directing the respondent no.1/accused to undergo substantive imprisonment after a lapse of twenty-four years, he is sentenced to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only), which shall meet the ends of justice in the facts and circumstances of the present case.

In the result the appeal succeeds and is allowed.

The respondent no.1/accused is found guilty and convicted for an offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and is sentenced to pay a fine of Rs. 10000/- (Rupees Ten Thousand only) within four months from this date. In default of payment of fine he shall undergo rigorous imprisonment for one year.

Let a copy of this judgment along with the Trial Court record be sent down to the Trial Court immediately.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees.