IN THE COURT OF SPECIAL RAILWAY MAGISTRATE ... IN THE COURT OF SPECIAL RAILWAY MAGISTRATE, TINSUKIA Judgement of Case.No. SR/CR – 131/10 RPF/POST/BPB – Case No. – 1(05) 09. Present:

1

IN THE COURT OF SPECIAL RAILWAY MAGISTRATE, TINSUKIA

Judgement of Case.No. SR/CR – 131/10

RPF/POST/BPB – Case No. – 1(05) 09.

Present: A.A.Choudhury, A.J.S

U/S 3(a) of the Railway Property (Unlawful Possession) Act, 1966

N.F Railway

Versus

1. Sri. Fakar Uddin

S/o. Late Amad Uddin.

Vill and P.O. Malua, Jalal Nagar

P.S. Badarpur.

Dist: Karimganj, Assam.

2. Sri. Kamal Uddin @ Kamal

S/o. Md. Abdul Noor.

Vill: North Kandigram, P.O. Malua.

P.S. Badarpur.

Dist: Karimganj, Assam.

... Accd persons

2

Evidence recorded on : 07.01.11, 09.03.11, 08.04.11, 16.07.11, 13.09.11,

06.03.12, 06.01.15, 15.05.15,

Statement-in-defence U/S 313 Cr P C: 19.05.15

Argument Heard on : 21.08.15

Judgement delivered on : 11.09.2015.

J U D G M E N T AND O R D E R

1. The prosecution case in a nutshell is that on 07.05.09 while Sri. Dipankar

Rai Choudhury A.S.I. Panchgram O.P. along with staff was conducting

‘Naka - Checking’ at Dholeswari Tri-junction, at about 7.30 P.M. one maruti

car which was coming from Janaki Bazar was signalled to stop but the said

car fled; bypassing the signal. The police party on chasing the said car

apprehended it, while the driver managed to escape. One person was

found inside the car who identified himself as Fakaruddin. On searching the

car, 12 nos. CST-9 Pot were recovered and subsequently seized by Sri.

Dipankar Rai Choudhury. On questioning the apprehend person

Fakaruddin, he disclosed the name of the fled away driver as one ‘Kalam’.

Then, the apprehended person along with the seized materials and car

were handed over to the Officer-in-charge by Sri. Dipankar Rai Choudhury

who lodged an F.I.R. (Exhibit -15) before the i/c, Panchgram O.P. and

accordingly a case was registered vide Algapur P.S Case No. 81/2009

dated 08/05/2009 U/S 379 / 411 I.P.C.

3

2. The Ld. C.J.M. Hailakandi vide order dated 14.05.2009 was pleased to

allowed the prayer of I.P.F/R.P.F./Badarpur dated 10.05.2009 for

conducting enquiry of the said case by R.P.F. Badarpur. Accordingly, on

19.05.2009 the seized materials were re-seized by Sri. Prabir Roy, ASI/

R.P.F/B.P.B. vide a re-seizure list dated 19.05.2009 (Exhibt-2). Thereafter,

Sri Rakhal Ch. Paul, ASI/ R.P.F/B.P.B. lodged a complaint to the IPF/BPB

which was registered as a case vide No. 1(5)09 U/S 3(a) of the Railway

Property (Unlawful Possession) Act, 1966 [in short referred to as 3(a)

RP(UP) Act] dated 19.05.2009 and ASI/Prabir Roy was endorsed as Enquiry

Officer for causing enquiry and report. At the conclusion of the enquiry,

Prosecution report vide P.R. No. 02/10 dated 09.02.2010 U/S 3(a) RP (UP)

Act was submitted against accused: (i) Sri. Fakar Uddin, S/o. Late Amad

Uddin, Vill and P.O. Malua, Jalal Nagar and (ii). Sri. Kamal Uddin @ Kamal,

S/o. Md. Abdul Noor of Vill: North Kandigram, P.O. Malua, both under P.S.

Badarpur, Dist: Karimganj, Assam, where value of the seized materials are

shown to be valued at Rs. 2,000/- approximately.

3. During the trial, particulars of offence U/S 3(a) of the said Act were read

over and explained to both the accused persons to which they pleaded not

guilty and claimed to be tried. Accordingly, charges under the said section

were framed against the aforesaid accused persons on 10.05.11. The

prosecution side examined as many as 09 PWs (prosecution witnesses) to

establish the charge, whereas the defense side did not have any DWs

(defence witnesses) and Statement in Defence U/S 313 Cr P C was also

4

recorded of both the accused persons on 19.05.15, wherein both accused

persons denied the charges. Accused Kamal Uddin stated that the seized

car bearing Registration No. AS-10/5399 belongs to him but on that day,

ie., on 07.05.2009, he had given the car to Fakar Uddin as he asked for it

for visiting his relatives. Accused Fakar Uddin stated that nothing was

recovered from the said car and he has been falsely implicated in this case

and was also forced to sign some papers.

4. Points for determination:

(i) Whether the accused Fakar Uddin and Kamal Uddin committed theft or have

been in possession of railway property suspected to be stolen materials or

unlawfully obtained?

(ii) Whether the seized materials are railway property?

(iii) Whether the accused persons are guilty of the offence charged?

Decision thereon and Reasons for the decision;

5. PW 6 deposed in his evidence that on 07.05.09 at about 07:30 pm during a

Naka Checking at Dholeswari trijunction, one car coming from janaki Bazar

side was signalled to stop byt the said car sped towards Silchar side

ignoring the signal. On challenging, the said car was intercepted while the

driver managed to escape. PW 6 also stated that one person who identified

himself as Fakar Uddin was found sitting in the car and on searching the

car, 12 nos. CST-9 Pot were recovered and seized. PW 6 also stated that

5

the apprehended person disclosed the name of the absconding driver as

Kalam. Then, PW 6 lodged an FIR before the before the i/c, Panchgram

O.P. who registered a case as aforesaid. PW 6 also stated that on 19.05.09,

ASI/RPF/Prabir Rai re-seized the seized materials alongwith the car.

6. In his cross examination, PW 6 stated that there were 2-3 independent

witnesses at the time of seizure but PW 6 has forgotten to recollect their

names. PW 6 stated that he did not furnish a copy of the seizure list to

apprehended accused Fakar Uddin. PW 6 stated that he had seized 09 nos of

CST 9 Pots from the said vehicle. PW 6 stated that he cannot say the

registration no. of the said vehicle from where materials were seized, but the

same was a Maruti 800 white colour car. PW 6 stated that the said vehicle

stopped about 50 metres ahead of Naka Checking barrier near Bagmara

Bridge. PW 6 stated that he has not seen the person driving the vehicle and

that accused Fakar Uddin disclosed the name of the driver as Kalam. PW 6

stated that he has lodged the ejahar but does not remembers the date. PW 6

stated that he has signed the re-seizure list but has forgotten the date.

7. PW 3, PW 4 & PW 8 deposed in their evidence that on 07.05.09 at about 07-

07:30 pm at Dholeswari Tiniali, one car was signalled to stop at the Naka

Checking but the said car did not stop and proceeded towards Katakhal side.

After some time, police personnel intercepted the car. The PWs stated that one

person was sitting in the car and about 10-12 nos of iron sleeper were

recovered from the car and later seized by the poice. Exhibit 4(1), 4(2) & 4(3)

are signatures of PW 3, PW 4 & PW 8 respecively in the seizure list.

6

8. PW 3 in his cross examination deposed that there was only one person in the

car and there was no driver in the said car. Again, PW 3 stated in his cross

examination that poice had arrested the driver and another person in this case.

PW 4 stated that the seizure list was prepared in his presence but he did not

see the other 2 witnesses signing the seizure list. PW 4 stated that he cannot

say the registration number of the vehicle not can say the name of the

apprehended person. PW 8 stated that he does not know the contents of the

seizure list (Ext. 4). PW 8 also stated that he cannot say whether the material

exhibit produced in the Court are the seized materials or not.

9. At this stage, on perusal of the C/R, it is seen that PW 6 is the seizing officer

and PW 3, PW 4 and PW 8 are seizure witnesses who were stated to be

present at the place of seizure on the relevant date. In the Seizure List (Ext. 4)

it is stated that 12 piece of broken fixed plate (Caster) loaded in vehicle No. AS

10- 5395 alongwith the said vehicle were seized on 07.05.09 by ASI/ Dipankar

Rai Chowdhury (PW – 6), whereas PW 6 in his deposition stated that he had

seized 09 nos of CST 9 Pots from said vehicle. PW 6 stated that he cannot say

the registration no. of the said vehicle from where materials were seized. The

aforesaid PWs stated that they have seen only one person in the car. PW 6

stated that he has not seen the person driving the vehicle and that accused

Fakar Uddin disclosed the name of the driver as Kalam. The seizure witnesses

have stated that there were about 10-12 nos of CST 9 Pots. From juxtaposition

of the above witnesses, it appears that, firstly, all these witnesses have seen

only one person in the car and none of them have actually seen the alleged

7

driver of the car. PW 6, the seizing officer conducting Naka Checking deposed

that the said vehicle stopped about 50 metres ahead of Naka Checking barrier

near Bagmara Bridge, yet, none has reportedly seen any person fleeing from

the car or any second person in the car. The existence of another person

driving the car has been stated by the person found inside the car, who stated

before the police that one Kalam, was driving the car and he fled away leaving

the car. In this circumstance, it is quite surprising to believe that a person

disregarding police signal at a Naka Checking stops at a mere distance of about

50 metres from the said Checking and later, flees away without catching

attention of any person/witnesses. Also, there is a clear discrepancy with

regard to the quantity of the seized materials, in so far as, the seizing officer is

clearly stating contrary to the quantity mentioned by him in the seizure list at

the time of seizure.

10. PW 1, the complainant deposed in his evidence that on 07.05.09 at about 7.30

pm, PW 1 alongwith Sri. Dipankar Rai Choudhury A.S.I. Panchgram O.P. while

conducting ‘Naka - Checking’ near Dholeswari Tri-junction bridge, found a

white colour Maruti car bearing registration No. AS 10 – 5399 with a driver and

another person inside the said car. PW 1 stated that 12 nos CST 9 Pots were

recovered from the car and the driver of the car fled away. PW 1 also deposed

that one Fakar Uddin was found inside the car and he stated that the driver

was one Kamal Uddin who fled away. He also stated that then a case was

registered U/S 379 IPC by the police on 08.05.2009. PW 1 further stated that

pursuant to order of the Ld. CJM/Hailakandi, on 19.05.09, PW 1 alongwith

8

Prabir Rai and CT/J U Khan re-seized the CST 9 Pots and case documents from

Panchgram Police O.P. PW 1 also stated that he signed the re-seizure list as

well as card label.

11. PW 1 in his cross examination stated that 19.05.09, he alongwith Prabir Rai

attented Panchgram Police O.P for re-seizing the seized CST 9 Pots. PW 1

stated that there was no independent witness during re-seizure. PW 1 stated

that he has re-seized vehicle alngwith relevant documents. PW 1 stated that at

about 10:15 hours, Prabir Rai re-seized the materials. PW 1 also stated that he

does not know the accused persons prior to this case.

12. PW 1, the complainant deposed that he was present during the Naka Checking

on 07.05.2009 at about 07:30 pm at Dholeswari Tri Junction. This statement of

PW 1 has not been corroborated elsewhere in this case. PW 6, the seizing

officer also did not mention regarding the presence of PW 1 on the spot at that

time. Neither the ejahar (Ext. 15) nor the Seizure List (Ext. 4) bears the

mention of PW 1, which is likely in the event of such presence. Also, the

presence of a lone RPF officer at a police Naka Checking on a road and which

is not within the Railway premises in the aforesaid circumstance has to be seen

with suspicion and cannot be accepted at this stage and more so in the

absence of any GD entry of Station Diary entry of the concerned RPF officer.

Now, on perusal of the prayer made by the IPF/RPF/BPB to the Ld.

CJM/Hailakandi for transfer of enquiry of Algapur Case No. 81/09 (instant case)

to the RPF/BPB, it is clearly stated therein that only on 09.05.09, (date of

alleged recovery and seizure being 07.05.09) a source information was

9

received regarding recovery of stolen railway materials from a Maruti car on

07.05.09 by i/c, Panchgram O.P. Therefore, I have no hesitation in forming an

opinion that PW 1 has deposed falsely regarding his involvement/presence in

the Naka Checking on 07.05.2009 at about 07:30 pm at Dholeswari Tri

Junction. Also PW 1 deposed that he has seen 02 persons in the said car – the

driver as well as another person and that after recovery of 12 nos CST 9 pots,

the driver managed to escape. This contention of PW 1 is also contrary to all

the deposition of the eye-witnesses who were reported to be present at the

time of seizure. Hence, evidence rendered by PW 1, in my opinion, cannot be

taken into consideration in this case as being contradictory from all quarters.

13. PW 2 in his evidence deposed that on 19.05.09, PW 2 alongwith ASI/R C Pal

and ASI/Prabir Rai proceeded to Panchgram Police Out Post at the direction of

IPF/RPF/BPB to take over the case docket and seized materials of the instant

case, initially registered by Police. On reaching, ASI/Dipankar Rai Choudhury

handed over 12 nos seized CST 9 Pots, one MAruti car bearing registration No.

AS 10/5395 as well as case docket which were re-seized by ASI/RPF/Prabir Rai

vide a re-seizure list signed by PW 2 and ASI/R C Pal. PW 2 also deposed that

ASI/R C Pal lodged a complaint before the IPF/RPF/BPB. Statement of PW 2

was recorded on 20.05.09 by ASI/RPF/Prabir Rai. In his cross examination, PW

2 deposed that at the time of re-seizure, there was no independent witness.

14. PW 7 deposed that on 06.05.09 at the direction of SSE/P-Way/BPB, PW 7

alongwith ASI/RPF/Prabir Rai proceeded to KM No. 09/0-1 between Panchgram

and Katakhal and on conducting joint verification found a stack of CST 9 Pot

10

missing kept by them previous day. PW 7 on 02.06.09 at the requisition of RPF,

examined the 12 nos seized CST 9 Pots and opined that the materials are

exclusively Railway property and used in Indian Railways and accordingly

issued an Expert certificate (Ext.-7) stating the same. In his cross examination,

PW 7 stated that there is over-writing and correction in the date mentioned in

Ext 7, Expert certificate and that PW 7 has no idea regarding the theft of CST 9

pots.

15. Considering the nature of seized goods, expert certificate as well as deposition

of PW 7, it can be said that the materials in issue are Railway property and

hence issue no. (ii) Whether the seized materials are railway property is

accordingly answered in the affirmative and in favour of the Railways.

16. PW 5 deposed that on 01.06.09 RPF personnel proceeded to Hailakandi Jail in

his vehicle and brought one accused person to RPF/POST/BPB from the jail,

whose name is Fakar Uddin. PW 5 stated that accused Fakar Uddin confessed

his guilt before the RPF stating that he alongwith driver Kamal Uddin brought

some Railway materials from Janki Bazar and were apprehended by police at

Dholeswari bridge, where Kamal Uddin escaped. PW 5 signed the statement of

the accsued Fakar Uddin as a witness.

17. In his cross examination, PW 5 stated that he is driver of the vehicle used by

RPF to visit Hailakandi Jail. PW 5 stated that accused Fakar Uddin was not

warned/cautioned by the RPF personnel before recording his confessional

statement. PW 5 stated that accused stated in Bengali language but he does

11

not remember in what language/script, the said statement was recorded. PW 5

stated that he does not remember the registration no. of the vehicle.

18. Lastly, PW 9, the Enquiry Officer of the case deposed in his evidence that on

19.05.09 a complaint was lodged by ASI/R.C. Pal which was registered as a

case vide RPF/BPB/Case No. 1(5)09 U/S 3 (a) RP (UP) Act agaist accused Fakar

Uddin and Kamal Uddin and case was endorsed to PW 9 as Enquiry Officer. PW

9 stated that he has re-seized 12 nos seized CST 9 Pots, one Maruti car bearing

registration No. AS-10/5395 as well as original seizure list from ASI/Deepankar

Rai Chowdhury. PW 9 stated that he has recorded the statement of accused

Fakar Uddin on 01.06.09 at the RPF/POST/Badarpur in presence of a local

witness namely Dilawar Hussain, wherein accused has voluntarily confessed his

guilt and also disclosed the name of the co-accused as one Kamal Uddin. PW 9

stated that he has recorded the statement of accused Kamal Uddin on 13.10.09

at the Dist. Jail at Tinsukia wherein accused person has also confessed his

guilt. PW 9 stated that the owner of the seized vehicle is Kamal Uddin as per

records collected by him. PW 9 also stated about the theft memo dt. 05.05.09

issued by SSE/P-Way/BPB and that PW 9 alongwith Aswini Kr. Borthakur (PW

7) conducted joint verification at KM No. 09/0-1 in between Panchgram and

Katakhal and found 12 nos CST 9 Pots missing from the nearby track. PW 9

also prepared a rough sketch map. At this stage, there appears a clear

contradiction between statement of PW 7 and PW 9 regarding the place from

where CST 9 pots allegedly went missing. PW 7 stated that the materials went

missing from a stack kept by them whereas PW 9 states that the materials

12

went missing from the nearby track, meaning that, in my view that materials

were taken out from beneath the track where such materials are used.

Thereafter, PW 9 on completion of enquiry submitted Prosecution Report vide P

R No. 02/2010 dated 09.02.2010 against both aforesaid accused persons U/S 3

(a) RP (UP) Act.

19. In his cross examination, PW 9 stated that he has prepared at card label at the

time of re-seizure on 19.05.09, whereas signature of accused Fakar Uddin and

Kamal Uddin were taken on 01.06.09 and 12.11.09 respectively. Kamal Uddin’s

signature on card label was taken while Kamal Uddin was in judicial custody at

Tinsukia Dist. Jail. In my opinion, this practice of obtaining signatures of

accused persons in the card label subsequently after many days might strongly

suggest chances of manipulation as well as the same is likely to cause

prejudice to the accused persons. Also, PW 9 stated that during recording of

statement of accused Kamal Uddin at the Dist. Jail, Tinsukia, there was no

witness present.

20. Heard ld. Counsels appearing for both sides at length. Ld. P.P/N F Railways

submitted that as railway property has been recovered from possession of both

accused persons, from where the driver Kamal Uddin managed to escape and

as the accused persons failed to show such possession of Railway property to

be lawful, hence both persons to be held accountable under the said provision

of law. Ld. Defence counsel appearing for both the accused persons stated that

accused Kamal Uddin was arrested after many days from his house and has

been implicated in this case solely on the basis of statement of accused Fakar

13

Uddin. Ld. Defence counsel stated that there is contradiction amongst the eye

witnesses who are seizing officer and seizure witnesses regarding the quantity

of seized materials and hence pleaded that alleged offence has not been

proved against the aforesaid accused persons. It is lastly submitted by the

defence counsel that the value of the seized property mentioned in the

Prosecution Report is Rs. 2,000/- (Rupees two thousand) only and considering

that the trail of the case is continuing since a long period of time, a lenient

view is pleaded ro be taken in the case.

21. Appreciating the entire evidence-on-record, it appears to me that accused

Fakar Uddin was found in possession of unlawful Railway materials suspected

to be stolen property while he was in vehicle No. AS-10/5395. All the eye-

witnesses including the seizing officer have identified accused Fakar Uddin. The

said vehicle is owned by accused Kamal Uddin. Kamal Uddin stated in his

statement in defence U/S 313 Cr P C that he was not driving the vehicle and it

was being driven by a driver namely, Swapan Das of Tripura. This plea seems

to be unacceptable as accused Kamal Uddin could not give any substantial

details of the so called Swapan Das. The circumstantial evidence suggests that

another person, who was driving the said car absconded from the place leaving

the car. Also the statement of accused Fakar Uddin indicates that Kamal Uddin

was driving the vehicle and he escaped after bypassing the Naka Checking.

Therefore, though there is lack of material evidence showing involvement of

accused Kamal Uddin in this case, yet, in my opinion, circumstantial evidence

does strongly suggest otherwise.

14

22. Accordingly, issue no. (i) Whether the accused Fakar Uddin and Kamal Uddin

committed theft or have been in possession of railway property suspected to

be stolen materials or unlawfully obtained and (iii) Whether the accused

persons are guilty of the offence charged is cumulatively answered in the

affirmative and in favour of the prosecution.

23. This Court has also given due consideration as to whether the provisions of the

Probation of Offenders Act, 1958 can be applicable in the instant case, but

from the conduct and overall circumstances that has come out from the

evidence on record, this Court is of the opinion that this is not a fit case to

release the accused persons under the Act of 1958 as the accused persons

were found in unlawful possession of exclusive stolen railway materials.

24. Later on, also heard both the accused persons, Fakar Uddin and Kamal Uddin

on the question of sentence. Accused pleaded clemency as being the first and

only offence ever committed by them and that they had no malafide intention

and also have assured that henceforth they will never commit any offence. On

being asked, both accused stated that they are the sole bread winner for their

respective families and hence prayed for leniency and apologetic. Both accused

persons stated that they belong to weaker economic strata of the society and

that both of them have large families to support, financially and otherwise.

Both accused persons also pleaded that they may be treated with leniency on

account of the attending circumstances and that their family would face

starvation if they are sent to jail. The ld. Defence counsel pleaded that the

instant offence being the first ever offence of the accused persons and that the

15

value of the seized materials being at Rs. 2,000/- only, accused persons may

be treated with leniency. Therefore, considering the nature and gravity of the

offence and the age and character/antecedent of the offender, this Court

passes the following Order in this case.

O R D E R

25. Accused (1) Fakar Uddin and (2) Kamal Uddin stand convicted in this case on

being found guilty of the offence U/S 3 (a) of The Railway Property (Unlawful

Possession) Act, 1966 charged against them.

26. Hence, both the accused persons are hereby sentenced to undergo Simple

Imprisonment for a period of 01 (one) month each.

27. Sentence of imprisonment has been awarded leniently in this case considering

the prayer for clemency pleaded by the accused persons for reasons

aforementioned.

28. The period of detention, if any, already undergone by the accused persons to

be set off in accordance with Section 428 Cr. P. C. against the imprisonment

awarded in this case.

29. Seized railway materials to be handed over to the concerned Railway authority

following due process of law.

30. The judgement is pronounced in open Court and in the presence of the ld.

counsels.

16

31. Let a free copy of the Judgement and Order be furnished to the accused.

32. With the above observations and directions, the case is disposed off against

both aforesaid accused persons.

Bail bond, if any, shall remain in force for a period 06 months as specified

under provisions of law.

Given under my hand and seal of this court on this the 11th day of, September,

2015.

(A.A. Choudhury) Special Railway Magistrate,

Tinsukia

17

A P P E N D I X

Prosecution Witnesses:

1. PW 1 – Rakhal Ch Pal, ASI/RPF/BPB.

2. PW 2 – Jahar Uddin Khan, CT/RPF/BPB.

3. PW 3 – Phool Kishore Das, Casual labourer.

4. PW 4 – Debi Prasad Tiwari, driver.

5. PW 5 – Dilawar Hussain, Driver.

6. PW 6 – Dipankar Rai Chowdhury, ASI/Assam Police/Panchgram O.P.

7. PW 7 – Aswini Kr. Borthakur, Sr. P-Way supervisor/LMG.

8. PW 8 – Rafiqul Haque, shop-keeper.

9. PW 9 – Prabir Rai, ASI/RPF/SCL.

Prosecution Documents/Exhibits:

1. Ext. 1 – Complaint dated 19.05.09

2. Ext. 2 – Re-Seizure List.

3. Ext. 3 – Card Label

4. Ext. 4 – Seizure List.

18

5. Ext. 5 – Statement of accused Fakar Uddin.

6. Ext. 6 – Joint verification Report.

7. Ext. 7 – Expert Opinion certificate.

8. Ext. 8 – Statement of accused Kamal Uddin.

9. Ext. 9 – Rough Sketch Map.

10. Ext. 10 – Missing memo dt. 05.05.09 from SSE/P Way/BPB to IPF/BPB.

11. Ext. 11 – Seizure List

12. Ext. 12 – Zimma Nama.

13. Ext. 13 – Prosecution Report.

14. Ext. 14 – Accused forwarding to Ld. CJM/Hailakandi dt. 08.05.09.

15. Ext. 15 – Ejahar dt. 07.05.09

16. Ext. 16 – F.I.R. dated 08.05.09

Court Witness: NIL

Defence Witness: NIL

Defence Evidence: NIL

(A.A. Choudhury) Special Railway Magistrate,

Tinsukia