Sahdeo Ram and anr. Vs. the State of Bihar - Court Judgment

Excerpt:
- - post, katihar submitted prosecution report against the petitioners as well as kishori lal, parikshan and chhedi. 5. it was next submitted that there is no authentic or reliable evidence on the record which may establish that the petitioners were the members of the crew of engine no. 4363 yg at the relevant time and the enquiry officer also failed to establish this fact in course of his enquiry and on hearsay, the petitioners were prosecuted by him. as such, it would appear that the statement of pw 3 that prayag das was the driver of the engine is not reliable and is an after-thought. it would be highly unsafe to convict one on a capital charge without any independent corroboration, solely on bald and dogmatic opinion of such a person, even if such opinion is assumed to be..... anil kumar sinha, j.1. the revision application has been directed against the order dated 3rd june, 1999 passed by 2nd additional sessions judge, katihar in criminal appeals nos. 20 of 1995 and 21 of 1995, whereby he dismissed the appeals preferred by the petitioners and others. the petitioners were convicted for the offence under section 3(a) of the r.p. (u.p.) act and were sentenced to undergo rigorous imprisonment for two years each.2. the facts relevant to the present revision application are that on 24-10-1985 at about 6.15 a.m. the s.i. s.n. ojha, posted at r.p.f. post, katihar, got an information that shunter and fireman of engine no. 4363-yg was selling coal from the engine towards, mansahi railway crossing gate of gosala, so, he rushed towards engine along with s.i. amar deo.....

Judgment:

Anil Kumar Sinha, J.

1. The revision application has been directed against the order dated 3rd June, 1999 passed by 2nd Additional Sessions Judge, Katihar in Criminal Appeals Nos. 20 of 1995 and 21 of 1995, whereby he dismissed the appeals preferred by the petitioners and others. The petitioners were convicted for the offence under Section 3(a) of the R.P. (U.P.) Act and were sentenced to undergo rigorous imprisonment for two years each.

2. The facts relevant to the present revision application are that on 24-10-1985 at about 6.15 a.m. the S.I. S.N. Ojha, posted at R.P.F. Post, Katihar, got an information that shunter and fireman of Engine No. 4363-YG was selling coal from the engine towards, Mansahi Railway Crossing Gate of Gosala, so, he rushed towards engine along with S.I. Amar Deo Singh and constable Bashishtha Narain Jha and noticed that engine crew was keeping one basket on the head of a lady from Engine No. 4363-YG. So, the lady was chased by them but she managed to escape throwing the basket, containing raw coal, by the side of the railway track. The complainant identified that lady who was Atwaria of Gosala. Meanwhile, the constable Ramayan Choubey also arrived there is to assist the raiding party. The complainant noticed that huge quantity of raw coal was kept by the side of the railway crossing gate and three persons were sitting there who fled away seeing the R.P.F. men. They could not be apprehended even after chase. Those persons were identified by S.I. Amar Deo Singh and constable Ramayan Choubey and they were Kishori Lal, Parikshan Mahto and Chhedi Sah who are not the petitioners here. The complainant with the help of other R.P.F. personnel extinguished the fire and seized 167 Kg. of raw coal. The complainant also seized raw coal left by the lady weighing about 36 Kg. The seizure lists were prepared and brought to R.P.F. post Katihar where the complainant submitted written complaint to the Officer Incharge R.P.F. post Katihar, (West). After completing the enquiry, the Officer Incharge R.P.F. post, Katihar submitted prosecution report against the petitioners as well as Kishori Lal, Parikshan and Chhedi. The petitioners along with Atwaria were charged under Section 3(a) of the R.P. (U.P.) Act to which they pleaded not guilty.

3. The learned counsel for the petitioners submitted that there has been miscarriage of justice in the present case, inasmuch, as without any positive evidence the petitioners who are railway employees have been convicted by the trial Court and the judgment of the trial Court has been confirmed by the appellate Court. As such, reappraisal of the evidence is necessary for dispensing justice in the case.

4. The learned counsel pointed out that so far the petitioners are concerned the allegations against them are that they kept a basket on the head of Atwaria which contained 36 Kg. of raw coal and, on chase, Atwaria fled away throwing the basket on the ground and the complainant seized 36 Kg. of coal from the ground near railway track of Gosala which was seized by the complainant and he prepared the seizure list (Ext. 1/1). As such, nothing was recovered from the possession of the petitioners who are said to be the members of the crew of Engine No. 4363 YG. There is no charge of abetment against the petitioners. Hence, on this score, the conviction of the petitioners under Section 3(a) of the R.P. (U.P.) Act is liable to be set aside.

5. It was next submitted that there is no authentic or reliable evidence on the record which may establish that the petitioners were the members of the crew of Engine No. 4363 YG at the relevant time and the Enquiry Officer also failed to establish this fact in course of his enquiry and on hearsay, the petitioners were prosecuted by him. In this connection it was pointed out that the petitioners were not named in the complaint which was filed by S.I. S.N. Ojha (PW 5). PW 5 did not also name the petitioners in his evidence that the petitioners were the members of the crew. PW 5 has no where stated in his evidence that the petitioners were the members of the crew so that the involvement of the petitioners may be established in this case.

6. The next important witness is PW 4 Rama Shanker Singh who conducted the enquiry but he has also not stated in his evidence that the petitioners were the members of the crew at the time when the alleged basket with coal was being loaded on the head of Atwaria. He has not whispered anything in that regard nor any enquiry was made by him to ascertain that the petitioners were the members of the crew of Engine No. 4363 YG who are allegeds to have loaded basket of coal on the head of Atwaria. It was proper for PW 4 to ascertain this fact from the authority of the railways as to who were the persons of the crew of Engine No. 4363 YG at the relevant time so that the petitioners could be connected with the alleged occurrence of the instant case.

7. It seems that the prosecution has relied on the evidence of PW 3 Amar Deo Singh who was also the members of the raiding party. PW 3 has stated in para 5 of his evidence that the petitioner Prayag Das was the shunter of the engine. He has not stated about petitioner Sahdeo Ram. The evidence of PW 3 does not deserve to be relied upon for the simple reason that if he had actually identified the petitioner Prayag Das, that fact must have been disclosed by him to the complainant and the complainant must have mentioned the name of Prayag Das as the driver of the engine in his complaint. There is no wishper of the name of Prayag Das in the complaint petition (Ext. 3). It has also not been stated in the complaint petition that Prayag Das was identified by PW 3. That apart, PW 3 had admitted in his cross-examination that the engine went to Marshalling Yard but he did not go to Marshalling Yard to make any enquiry. He has stated that Inspector S.N. Ojha (PW 5) had gone to Marshalling Yard and he must have gone to make enquiry into the matter and if the names of the petitioners would have been ascertained by him as the driver and fireman of the engine, the complainant S.N. Ojha must have disclosed this fact in his complaint petition. But, there is no whisper of the name of the petitioners in the complaint petition. As such, it would appear that the statement of PW 3 that Prayag Das was the driver of the engine is not reliable and is an after-thought.

8. PW 1 Ramayan Choubey and PW 2 Bashishtha Narayan Jha who were also the members of the raiding party have not disclosed the names of the petitioners in their evidence.

9. PW 6 Sunil Kumar Chakarverty has deposed that he had gone to R.P.F. post on 22-11-1985 and had examined 36 Kg. of coal and had given a certificate which has been proved as Ext. 4. He has not deposed that the said coal was railway property. The certificate granted by him goes to show that he had visually examined 36 Kg. of coal and on such examination certified that the coal was steam coal which is used in railway loco. The learned counsel appearing for the petitioners submitted that it does not appear from the evidence of PW 6 that he was an expert to examine the coal of railways and it cannot be assumed that he was an expert. Hence the evidence of PW 6 does not prove the fact that 36 Kg. of coal examined by him was railway property.

10. The learned counsel for the petitioners has relied upon a decision in the case of Raj Kishore Rabidas v. The State reported in AIR 1969 Cal 321 wherein it was observed that 'law does not permit any assumption without evidence on material points of competence of witness who offers opinion for consideration against an accused.' The learned counsel also relied on another decision in the case of Mohmood v. The State of Uttar Pradesh reported in AIR 1976 SC 69: (1976 Cri LJ 10) wherein it was observed by the Apex Court that 'Inspector Daryao Singh (PW 15) has not given any reasons in support of his opinion. Nor has it been shown that he has acquired special skill, knowledge and experience in the science of identification of finger prints. It would be highly unsafe to convict one on a capital charge without any independent corroboration, solely on bald and dogmatic opinion of such a person, even if such opinion is assumed to be admissible under Section 45, Evidence Act. 'Relying upon the aforesaid decisions it was submitted that there is nothing in the evidence of PW 6 which may show that he had acquired any special skill or knowledge of an expert and the certificate granted by him cannot be said to be an opinion of an expert. Factually, I also find that PW 6 has not disclosed anything in his evidence which may show that he had acquired any special knowledge or skill to give his opinion as expert in the matter of examination of coal belonging to railways. Therefore, certificate (Ext. 4) granted by PW 6 cannot prove the essential fact that 36 Kg. of coal was the railway property.

11. Apart from that, there is another lacuna in the prosecution, inasmuch, as the trial Court recorded the statement of the petitioners under Section 313 of the Cr.P.C. and the question was put to both the petitioners that they were caught while illegally accepting 36 Kg. of raw coal on 24-10-1985 which they denied. There is no evidence against the petitioners that they were caught while accepting 36 Kg. of raw coal on 24-10-1985. As such, the petitioners were certainly prejudiced on this score also.

12. In view of my above discussions, I find that both the Courts below lost sight to the fact that the prosecution had misreably failed to establish the fact that the petitioners were the members of the crew of Engine No. 4363 YG on the alleged date and time of occurrence by solid and cogent evidence and without any reliable evidence the Courts below held the petitioners guilty for committing offence under Section 3(a) of the R.P. (U.P.) Act, which can not be sustained.

13. For the reasons stated above, the orders of conviction and sentence as recorded by the trial Court and confirmed by the appellate Court are hereby set aside.

14. In the result, therefore, this revision petition is allowed and the petitioners are discharged from the liability of their bail bonds.