Ajaya Ku.Patra Vs State

1 . Instant revision is filed by the petitioner in terms of Section 401 Cr.P.C. read with Section 397 Cr.P.C. assailing the impugned judgment passed in connection with Criminal Appeal No.8 of 2005 by the learned Adhoc Additional District and Sessions Judge (FTC), Gunupur dated 28^th June, 2006 for having confirmed the order of conviction and sentence directed against him by learned J.M.F.C., Bissam Cuttack in G.R. Case No.110 of 1995 (T.R. No.1057 of 1995) on the grounds inter alia that the same is liable to be interfered with for not being in accordance with law and in conformity with the materials on record.

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2 . The petitioner and other accused persons were chargesheeted under Sections 379 and 411 read with 34 IPC and Section 3 of Railway Property (Unlawful Possession) Act, 1966 (in short, ‘the Act’) and all of them faced trial and

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ultimately, the learned J.M.F.C., Bissam Cuttack acquitted others but found him guilty for the offences punishable under Sections 411 read with 34 IPC and Section 3 of the Act and imposed a sentence to undergo R.I. for a period of one year and to pay a fine of Rs.1000/- with a default sentence of R.I. of 2 months. No separate sentence was imposed for the offence under Section 411 IPC and the direction as above was only for the offence punishable under Section 3 the Act. The learned J.M.F.C., Bissam Cuttack, however, found the petitioner not guilty under Section 379 read with Section 34 IPC like the other accused persons.

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3 . The prosecution case in brief is that during the night of 18^th and 19^th June, 1995 at about 2.00 AM, the OIC of Chandili P.S., as per the direction of S.P., Rayagada, being accompanied with PS staff and S.I. of Police, Therubali Outpost and others proceeded to the a village to conduct raid in respect of illegal transportation of iron sleepers from nearby railway track running between Visakhapatnam and Therubali and on reaching there, found fresh tyre impression of a truck on the western side of the State Highway near a milestone and by following the same, as it led them towards a bushy jungle area, reached the spot and found a truck bearing Regd. No.AHJ 8389 loaded with railway iron sleepers and some persons belonging to labour class were being engaged for loading of it, but they managed to flee seeing the police party, whereas, the petitioner and other accused persons present were found involved in supervising such loading work. Due to theft of iron sleepers belonging to railway and its possession by the accused persons, all of them were

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chargesheeted for the alleged offences and as earlier stated, except the petitioner, others were acquitted of the charges levelled. The learned J.M.F.C., Bissam Cuttack discussed the evidence on the charges framed and received from the side of the prosecution as defence adduced no evidence, either oral or documentary. The learned court below having been approached by the petitioner, disposed of the appeal and dismissed it, confirming the order of conviction and sentence with a conclusion that he was present at the spot and was duly identified by the prosecution witnesses examined. The findings arrived at by the learned J.M.F.C., Bissam Cuttack have been entirely confirmed in appeal upholding the order of conviction and sentence, the petitioner filed the revision.

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4 . Heard Mr. Nanda, learned counsel for the petitioner and Ms. Dash, learned ASC for the State.

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5 . Mr. Nanda, learned counsel for the petitioner would submit that there are many discrepancies in the evidence of the prosecution but it has not been taken judicial notice of the learned courts below. It is contended that the impugned judgments as at Annexures-1 & 2 are against the facts and law and hence, liable to be set aside. The contention is that some of the witnesses deposed about absence of the petitioner at the spot and that apart, there are series of contradictions in the evidence of P.Ws.8, 9, 10 and 11 with regard to the occurrence, but it has not been duly taken cognizance of. The submission is that the independent witnesses, namely, P.Ws.6 & 7 did not support the prosecution case. It has been alleged that the petitioner being the Joint Secretary of the Constable

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Association of the district, there was ill-feeling against him by the higher officials including S.P., Rayagada. The further contention is that the material witness, namely, P.W.5 although revealed six persons to have been apprehended at the spot but could only able to identify the petitioner and since, was an office bearer of the Association at the relevant point of time, harbouring ill-intention, he was entangled in the case and therefore, the allegations are ill-motivated and outrightly false but the learned courts below discarded such plea and though disbelieved offence of theft to have been committed but for no just reason, convicted him under Section 411 read with 34 IPC and Section 3 of the Act.

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5.1 . In course of hearing and in support of contentions advanced, Mr. Nanda, learned counsel cited the following decisions, such as, Sd Shabuddin Vrs. The State of Telangana in Criminal Appeal No.3605 of 2025 arising out of SLP (CRL) No.16117 of 2024; Bhagwat Rajaram Patil Vrs. The State of Maharashtra & another 2014 ALL MR (Cri) 702 ; and Raj Kumar @ Suman Vrs. State (NCT of Delhi) of the Apex Court in Criminal Appeal No.1471 of 2023 dated 11^th May, 2023. It is contended by Mr. Nanda, learned counsel that the essential ingredients of Section 411 IPC have not been fulfilled, hence, the petitioner could not have been convicted thereunder nor for any such possession of the railway properties under Section 3 Act, which has been completely lost sight of the learned courts below and not only that, no evidence is available on record to show that the iron sleepers belong to the railway as any such evidence received from the side of the prosecution failed to establish it when the

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law demands its proper identification, which should not be based on opinion of any witness, who is not having the experience and expertise in that regard. The contention is that no any witness of the railway has been examined by the prosecution having the knowledge to identify the railway properties and therefore, the order of conviction under Section 3 of the Act cannot be sustained in law, which is entirely based on the testimony of the police officials examined from the side of the prosecution. The contention is that in absence of any such expert evidence in conformity with Section 45 of the Indian Evidence Act, the learned courts below could not have reached at such conclusion, which is grossly erroneous and liable to be set at naught and in that connection, the decision in Bhagwat Rajaram Patil (supra) has been placed relied on. That apart, the petitioner was not confronted with all the incriminating materials, while he was examined under Section 313 Cr.P.C., which is statutory mandate and it is not in compliance of the Apex Court’s decision in Raj Kumar @ Suman (supra).

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6 . Ms. Dash, learned ASC for the State submits that the official witnesses, who had been to the spot including P.W.5 proved the presence of the petitioner and the prosecution case is successfully established. The recovery and seizure of iron sleepers of the railway have also been proved on record. Notwithstanding the acquittal order of the accused persons, for the reason that the petitioner was identified by the official witnesses even though not by P.Ws.6 & 7, a case for having received the stolen articles has been established, as further submitted. For such possession of the railway properties, the

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petitioner has also been rightly convicted under Section 3 of the Act irrespective of any such decision of the learned courts below with respect to other accused persons having been acquitted and according to Ms. Dash, learned ASC, the petitioner cannot take advantage of such an acquittal order, when he was identified being present at the spot supervising the loading of the iron sleepers.

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7 . Perused the LCR and gone through the prosecution evidence received during trial.

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8 . The actual fact of theft of the iron sleepers has not been established on a reading of the evidence of the witnesses examined from the side of the prosecution, since its source could not be unearthed. In other words, no one has been fixed with the responsibility regarding theft of the iron sleepers. From the materials on record, this Court finds that the seized vehicles were at the spot and the iron sleepers were found loaded on a truck but who else were present and how they were involved could not be elicited during investigation. The other accused persons present have not been alleged of having received the stolen articles either. The liability of receiving the iron sleepers has been fastened on the petitioner, who was alleged to be present at the spot like others. According to the prosecution, absence of any such explanation of the petitioner being present there revealed his dishonest intention and is a proof of him having received the stolen properties. The Court is completely in disagreement with the above conclusion of the learned J.M.F.C., Bissam Cuttack for the fact that he was present at the spot like other

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accused persons, but there has been no distinct evidence on record to suggest that he was in possession of the stolen articles as a receiver. The petitioner has been identified by the police officials including P.W.5. It is quite natural that the petitioner being a Constable could easily be identified by other police officials on reaching the spot. Of course, it is unusual to expect the presence of the petitioner at such an odd hour of night but that by itself is not sufficient to attribute malfeasance against him.

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8.1 . It is revealed from the record that the independent witnesses, namely, P.Ws.6 & 7 turned hostile not having identified the petitioner being present at the spot. It is of course not to disbelieve the evidence of the official witnesses in absence of any corroboration, but to hold the petitioner responsible for receiving the stolen articles and possession of the iron sleepers, it does not receive any confirmation from the evidence of the prosecution. When theft is not established and other accused persons have been acquitted, the Court is of the considered view that the petitioner could not have been held liable as a receiver of the iron sleepers merely for being there at the spot. No specific evidence is on record to suggest that the petitioner was primarily responsible in the loading of the iron sleepers in the truck. All other accused persons including the petitioner have been alleged of supervising the loading of the iron sleepers at the time when police party arrived. If others have been acquitted, it is not understood, how and on what basis, the petitioner has been singled out and held responsible as a receiver of the railway properties. Regarding the claim that the higher officials of the petitioner

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having had bad intention to falsely implicate him, it is not borne out of record. But the fact remains, in order to prove and establish that the petitioner was responsible for receiving the stolen articles, something more than the evidence led by the prosecution was needed. If other accused persons including the petitioner have not been found guilty of having committed theft, one fails to understand how the learned courts below reached at a conclusion that he was one among the receivers of the stolen articles. As to who is responsible for the theft and who of all the accused persons received the iron sleepers is not discernible from the record. The petitioner being a Constable and merely for his presence at the spot, any such conclusion regarding him to have received the stolen articles would not be just and proper.

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9 . One of the conditions sine qua non to hold a property in possession of an accused as stolen, the fact of theft is to be established. If someone received stolen property fully knowing or having reason to believe that same is a subject of theft is punishable under Section 411 IPC. Even assuming that the iron sleepers to be the properties of the railway and found loaded in a truck and hence, theft to have been committed but there is total absence of evidence to establish that the petitioner was the receiver of it. The Apex Court in Sd Shabuddin (supra) has concluded that to hold an accused liable under Section 411 IPC, it has to be established that the property in his possession is a stolen one. In absence of any concrete evidence led by the prosecution towards receiving the iron sleepers, the Court is of the view that the petitioner could not have been held guilty for the offence under Section

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411 IPC, hence, the learned courts below can be said to have committed gross error in reaching at such a conclusion.

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10 . Admittedly, no expert evidence has been received to prove the fact that the iron sleepers belong to the railway. It was for the prosecution to lead evidence to establish that the properties found loaded in the truck belonged to the railway. The identification of the iron sleepers by the official witnesses, in absence of any such evidence in terms of Section 45 of the Indian Evidence Act, one has to arrive at a conclusion that the petitioner cannot either be held responsible for being in possession of such properties and hence, liable for punishment under Section 3 of the Act. In fact, in Bhagwat Rajaram Patil (supra), it is concluded by Bombay High Court that identification of railway properties is not to be assumed and accepted on the basis of opinion of a witness unless he is specially skilled or has knowledge or training on such identification claiming that it belongs to the railway. No one from the railway having been examined for identification of the iron sleepers, the Court is of the view that the evidence in that regard is completely deficient. Nevertheless, even assuming for the sake of argument that the seizure articles belong to the railway but according to the Court, when there is no evidence in clear terms to prove that the petitioner to be the receiver of the same or entirely responsible for being in possession of it in exclusion of all others and that the co-accused persons have not been found guilty under Sections 379 and 411 IPC and Section 3 of the Act, no any liability can be fastened on him. Having said that, considering the submission of Mr. Nanda, learned counsel for

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the petitioner and Ms. Dash, learned ASC for the State, the final conclusion of the Court is that there is no cogent and credible evidence to prove the petitioner’s involvement in juxtaposition to the order of the acquittal vis-à-vis the coaccused persons and all such aspects having not been duly taken care of even by the learned court below while dealing with the appeal and dismissing it, the petitioner should have to be treated equally extending parity.

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11 . Accordingly, it is directed.

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12 . In the result, the revision stands allowed. As a necessary corollary, the impugned judgments as per Annexures-1 & 2 are hereby set aside directing acquittal of the petitioner for the alleged offences under Section 411 IPC and Section 3 of the Act in terms of Section 248(1) Cr.P.C. and as a result, he is directed to be set at liberty forthwith with the cancellation of the bail bonds executed by him.

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(R.K. Pattanaik) Judge

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Alok

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Signature Not Verified

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Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 09-Mar-2026 18:30:46

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Ajaya Ku.Patra v. State

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Ajaya Ku.Patra v. State

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