Mool Singh Vs. State of Rajasthan

Mool Singh vs State of Rajasthan

Disposition Petition allowed Court Rajasthan Decided Sep 18, 1989

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Citation: sooperkanoon.com/760656
Court: Rajasthan High Court
Judge: N.C. Kochar. J.
Decided On: Sep 18, 1989
Case Number: S.B. Cr. Revision Petition No. 315 of 1984
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

Railway Properties (Unlawful Possession) Act, 1966 - Section 3--Seal with I.O.--Neither register produced nor Incharge of Malkhana examined--Held, prosecution case is doubtful and accused is entitled to acquittal.;The seal admittedly remained with the I.O. Neither the Malkhana register has been produced nor has the ...

Key legal issue: Criminal
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Mool Singh

Respondent

State of Rajasthan

Legal References

Cases Referred: State of Rajasthan v. Daulatram
Reported In: 1990(1)WLN660

Excerpt

railway properties (unlawful possession) act, 1966 - section 3--seal with i.o.--neither register produced nor incharge of malkhana examined--held, prosecution case is doubtful and accused is entitled to acquittal.;the seal admittedly remained with the i.o. neither the malkhana register has been produced nor has the incharge, malkhana been examined to prove that the seals on the property remained intact between the period of its recovery and its examination by pw 5 gopal kishan. in view of the decision incase state of rajasthan v. daulat ram [air 1980 sc 1314], the case of the prosecution thus is doubtful and the petitioner is entitled to be acquitted.;revision accepted. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. .....the learned judicial magistrate (railways), ajmer, who convicted and sentenced him as noted above his appeal having been dismissed by the learned ssesions judge, ajmer the petitioner has approached this court by filing this revision petition under section 397 read with section 401 cr.pc.3. i have heard the learned counsel for the parties and have perused the record of the case.4. shri garg has contended that the learned lower courts, while holding that the case property recovered from the petitioner was railway property, have relied on the statement (ex. p.5) of the petitioner, without the said statement having been put to the petitioner during his examination under section 313 cr.pc. it has further contended that no evidence has been produced to prove that the seals on the case property remained intact till the case property was produced for examination before pw-5 gopal kishan on 9-10-1973. shri garg has also submitted that considering the paltry value of the property and the age of the petitioner, who is now more than 70 years, he be given the benefit of section 95 ipc or of probation.5. during the course of investigation the i.o. had recorded the statement of the petitioner and the said statement has been proved on record as ex. p. 5. the said statement was admittedly not put to the petitioner who had no opportunity to explain the same in his examination under section 313 cr pc. the learned lower courts have relied on the above said statement of the petitioner. in view of the decision of the supreme court in case 'sharad v. state of maharashtra ' : 1984 crilj1738 the said statement has to be completly excluded from consideration. from the record it is also found that in his statement the i.o. has deposed that after recovering the case property he had deposited it in the malkhana and an entry about its depositing had been made in the malkhana register, but no entry was made in the malkhana register when the property was taken out for showing to pw-5 gopal.....

Full Judgment

N.C. Kochar, J.

1. The petitioner was convicted Under Section 3 of the Railway Properties Unlawful Possession) Act, 1966 in criminal case No 663/1975 (468/1973 was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/- in default of payment of fine to Under rigorous imprisonment for a further period of one and a half months vide judgment dated 27-3-1981 passed by the learned Judicial Magistrate (Railways), Ajmer. His appeal against the conviction and sentence was dismissed by the learned Sessions Judge, Ajmer on 21-11-1984. The prosecution story, in short, was as Under.

2. The petitioner was employed as a Rakshak in the Railway Protection Force. On 5-10-1973 he was on duty inside the Carriage and Wageon Work Shop at Ajmer. After finishing his duty he came out of the gate of the work shop at about 12.17 A.M. in the night and at that time he was holding his tiffin carrier in his hand. On suspicion PW-1 After Singh Sub-Inspector of the Railway Protection Force (the I.O) searched his tiffin carrier in presence of the witnesses and found that a piece of dynamo belt was lying in the upper tin of the tiffin carrier and burnt copper wire weighing about 500 gms. was lying in the lower tin of the tiffin carrier. The I.O. took the case property in possession, arrested the petitioner and recorded his statement Ex. P. 5. At the request of the I.O. PW-5 Gopal Kishan examined the case property on 9-10-1973 and vide report Ex. P.4 opined that the same belonged to the railways and was of the value of approximately Rs. 20/-. After completion of the investigation, the petitioner was prosecuted in the court of the learned Judicial Magistrate (Railways), Ajmer, who convicted and sentenced him as noted above His appeal having been dismissed by the learned Ssesions Judge, Ajmer the petitioner has approached this Court by filing this revision petition Under Section 397 read with Section 401 Cr.PC.

3. I have heard the learned Counsel for the parties and have perused the record of the case.

4. Shri Garg has contended that the learned lower Courts, while holding that the case property recovered from the petitioner was railway property, have relied on the statement (Ex. P.5) of the petitioner, without the said statement having been put to the petitioner during his examination Under Section 313 Cr.PC. It has further contended that no evidence has been produced to prove that the seals on the case property remained intact till the case property was produced for examination before PW-5 Gopal Kishan on 9-10-1973. Shri Garg has also submitted that considering the paltry value of the property and the age of the petitioner, who is now more than 70 years, he be given the benefit of Section 95 IPC or of probation.

5. During the course of investigation the I.O. had recorded the statement of the petitioner and the said statement has been proved on record as Ex. P. 5. The said statement was admittedly not put to the petitioner who had no opportunity to explain the same in his examination Under Section 313 Cr PC. The learned lower Courts have relied on the above said statement of the petitioner. In view of the decision of the Supreme Court in case 'Sharad v. State of Maharashtra ' : 1984 CriLJ1738 the said statement has to be completly excluded from consideration. From the record it is also found that in his statement the I.O. has deposed that after recovering the case property he had deposited it in the Malkhana and an entry about its depositing had been made in the Malkhana register, but no entry was made in the Malkhana register when the property was taken out for showing to PW-5 Gopal Kishan on 9-10-1973 or when it was redeposited in the Malkhana after resealing it. The seal admittedly remained with the I.O. Neither the Malkhana register has been produced nor has the Incharge, Malkhana been examined to prove that the seals on the property remained intact between the period of its recovery and its examination by PW-5 Gopal Kishan. In view of the decision in case 'State of Rajasthan v. Daulatram' : 1980 CriLJ929 , the case of the prosecution thus is doubtful and the petitioner is entitled to be acquitted.

6. In this view of the matter the contention that the petitioner be given the benefit of Section 95 IPC or of probation may not be dealt with.

7. Consequently. I accept this revision petition, set aside the conviction and sentence passed by The learned lowercourts and acquit the petitioner. The petitioner is on bail. He need not surrender to his bonds, which stand discharged.

Same Court & Year Rajasthan · 1989 Same Parties Mool Singh vs State of Rajasthan Same Subject Criminal Same Judge N.C. Kochar. J.

Criminal