CRIMINAL APPEAL 1247 of 2007 on 22 April 2003

1. Charakatam Trinadha Rao, S/o. Muttyulu, Gavara, NAD Kotha Road,D.No. 58-16-69, Ambedkar Nagar, Working a Khalasi Helper[token No.]1325(C&W) Department, Ore-Exchange yard, Marripalem,Visakhapatnam District.D.No. 58-16-69, Ambedkar Nagar, Working a Khalasi Helper[token No.]1325(C&W) Department, Ore-Exchange yard, Marripalem,Visakhapatnam District.

2. Nakka Appa Rao Reddy, S/o.Late Venkata Reddy, AllipuramVisakhapatnam, Visakhapatnam District.Visakhapatnam, Visakhapatnam District.

...Respondents

Counsel for the Appellant: Public Prosecutor Counsel for Respondent No.1: SriI Naveen Kumar Counsel for Respondent No.2: Sri V V N Narasimham The Court made the following:

APHC010456932007

IN THE HIGH COURT OF ANDHRAPRADESH AT AMARAVATI[3327](Special Original Jurisdiction)

WEDNESDAY, THE TWELFTH DAY OF MARCHTWO THOUSAND AND TWENTY FIVE

PRESENTTHE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

CRIMINAL APPEAL NO: 1247/2007

Between:

The Senior Secrity Commissioner

...APELLANT

AND

Charakatam Trinadha Rao and Others...RESPODENT(S)

Counsel for the Apellant:1. PUBLIC PROSECUTOR (AP)

Counsel for the Respodent(S):1.1 NAVEEN KUMAR2.VV N NARASIMHAM

The Court made the following Judgment:

ThisCriminal Appealhas beenpreferredby the Stateagainst the judgment of acquittal dated 22.04.2003 passed in CCNo. 19of 2001by the learned VI MetropolitanMagistrateforRailways, Waltair.

2. Brief facts of the case are that on 26.6.2000, P.W.1, alongwith P.Ws.4, 6 and others, while conducting surprise[rounds]atWaltair marshaling yard andits surrounding area, at 2.20 pm.with P.Ws.4, 6 and others, while conducting surprise[rounds]atWaltair marshaling yard andits surrounding area, at 2.20 pm.

they found A1carrying something heavy in an oid cementpoiythene bag on his right hand in a suspicious manner at SambaMurthy Nagar road. On that, the raiding party detained him andfound 8 kgs of broken pieces of railway distributary valve and fourelastomeric rubber padsin the said polythenebag,inhispossession. On demand, A1 failed to produce proper authorityorreceipt for possessing the said railway articles and thereuponP.W.1 seized the said articles from the possession of A1 underthecoverof aseizurelist,arrestedhim andrecordedhisconfessional statement.During the course of interrogation,[A1]confessed that he used to dispose of the railway material to A2 athis shop at Dondaparthi.Hence, a case has been registeredagainst A1 and A2in Crime No.28 of 2000 for the offencespunishable under Section 3(a) of the Railway Property (UnlawfulPossession) Act, 1966.Thereafter, the raiding party along withA1andindependent witness, wenttotheshopof A2atDondaparthi, and on interrogation A2 produced three Aluminumwindow shutter and 4 Kgs of broken pieces of distributary[valve]kept in an old cement polythene bag.Thereupon, P.W.1 seizedthe said property from the possession of A2 under the cover ofseizure list. A.1 and A.2 were arrested and sent judicial custody.

Duringthecourseofinvestigation,thestatementsofwitnesses were recorded, and theft memo in connection[with][ the]propertyin dispute was received from the concerned.Havingreceivedrequisition, PW10 issued ownership certificate statingthat the shop situated in Dondaparthi is in the name of PW9, whois noneother thanthe wifeof A2.After receiptofallthenecessary certificates and completion of enquiry, a report filedagainst the accused.

3. ThelearnedMagistrate took cognizance of the offenceunder Section 3(a) of the Railway Property (Unlawful Possession)Act,1966againsttheaccused.AfterfurnishingcopiesofdocumentstotheaccusedasrequiredunderSection207under Section 3(a) of the Railway Property (Unlawful Possession)Act,1966againsttheaccused.AfterfurnishingcopiesofdocumentstotheaccusedasrequiredunderSection207Cr.P.C., charge for the aforesaid offence was framedby thelearned Magistrate against the accused.When the charge[was]read over and explained to them, the accused pleaded not guiltyand claimed to be tried.learned Magistrate against the accused.When the charge[was]read over and explained to them, the accused pleaded not guiltyand claimed to be tried.

4. During trial, the prosecution examined PWs.1 to 12 and gotmarked Exs.P1 to P21 and MOs.1 to 6.marked Exs.P1 to P21 and MOs.1 to 6.

5. After closure of the prosecution evidence, A1 and A2[were]examined under Section 313 Cr.P.C., explaining the incriminatingexamined under Section 313 Cr.P.C., explaining the incriminating material found against themin the evidenceof prosecutionwitnesses, for which they denied.

6. After hearing both sides, the trial Court found A1 and A2are not guilty of the offence under Section 3(a) of the RailwayProperty(UnlawfulPossession)Act,1966andaccordingly,acquitted them of the charge leveled against them.Against thesaid acquittal, the present Criminal Appeal has been preferred bythe State.are not guilty of the offence under Section 3(a) of the RailwayProperty(UnlawfulPossession)Act,1966andaccordingly,acquitted them of the charge leveled against them.Against thesaid acquittal, the present Criminal Appeal has been preferred bythe State.

7. Heard learned Assistant Public Prosecutor appearingonbehalf the appellant/State and the learned counsel appearingonbehalf of the respondents. Perused the material on record.

8. Learned Assistant Public Prosecutor appearing on behalf[of]the appellant submitted that from the evidence of the materialprosecutionwitnesses,coupledwithExs.P1toP4,theprosecutionis able to establish that the accused were foundinpossession of railway property illegally and the same[was][ seized]from their possession, and hence, the prosecution is able to bringhome the guilt of the accused beyond reasonable doubt,[but the]learned Magistrate attached much weight to minor contradictionsand discrepancies and erred in acquitting the accused.the appellant submitted that from the evidence of the materialprosecutionwitnesses,coupledwithExs.P1toP4,theprosecutionis able to establish that the accused were foundinpossession of railway property illegally and the same[was][ seized]from their possession, and hence, the prosecution is able to bringhome the guilt of the accused beyond reasonable doubt,[but the]learned Magistrate attached much weight to minor contradictionsand discrepancies and erred in acquitting the accused.

9. On the other hand, learned counsel appearing on behalf[of]the respondents submitted that the evidence of PWs.1to 6isinconsistent with the contents of EXs.P1to P4, and[there]arediscrepancies in the evidence of material prosecution[witnesses]on material aspects, and the prosecution failed to establish thatthe accused were found in possession of the railway property,and the learned Magistrate rightly found the accused not guilty ofthe charge leveled against them and prays to dismiss the appeal.the respondents submitted that the evidence of PWs.1to 6isinconsistent with the contents of EXs.P1to P4, and[there]arediscrepancies in the evidence of material prosecution[witnesses]on material aspects, and the prosecution failed to establish thatthe accused were found in possession of the railway property,and the learned Magistrate rightly found the accused not guilty ofthe charge leveled against them and prays to dismiss the appeal.

10. Now, the point that arises for consideration is whether theprosecutionis able to establish the guilt of the respondents/accused for the offence with which they were charged,andwhether the order of acquittal recorded by the trial Court requiresinterference by this Court ?prosecutionis able to establish the guilt of the respondents/accused for the offence with which they were charged,andwhether the order of acquittal recorded by the trial Court requiresinterference by this Court ?

11.

11. This is an appeal against an Order of acquittal. There[is][ a]presumption available under law that an accused is presumed tobe innocent unless contraryisproved. That presumptionofinnocence is further strengthened by an order of acquittal passedby the trial Court. In dealing with the appeals against acquittal,though this Court has full power to re-appreciate the evidence, atthe same time,it would be slow in interfering with[the][ order][ of]acquittal because presumption available under lawisfurtherpresumption available under law that an accused is presumed tobe innocent unless contraryisproved. That presumptionofinnocence is further strengthened by an order of acquittal passedby the trial Court. In dealing with the appeals against acquittal,though this Court has full power to re-appreciate the evidence, atthe same time,it would be slow in interfering with[the][ order][ of]acquittal because presumption available under lawisfurther Strengthenedbytheorderofacquittal.Unlesstherearesubstantial or compellingreasons, this Court will not ordinarilydisturb the findings of the trial Court. If thetrial Court has givenany perverse finding, then it can be a ground to interfere with theorder of acquittal. Similarly, if admissible evidencehas not beentakenintoconsiderationor inadmissible evidencehas beenlooked into for the purpose of arriving at a particular finding, thenalso it can be said to be a compelling reason to interfere with thesame.

12. On this aspect,itis pertinent to refer to a decisioniHarbans Singh & another v. the State of Punjab\ whereinitwasheld as follows: (para 8)Harbans Singh & another v. the State of Punjab\ whereinitwasheld as follows: (para 8)[n]

The question as regards the correct principles to beapplied by a Court hearing an appeal against acquittalof a person has engaged the attention of this Courtfrom the very beginning. In many cases, especially[the]earlier ones,theCourt hasinlaying downsuchprinciples emphasized the necessity of interferencewithanorderofacquittalbeingbasedonlyon‘compellingandsubstantialreasons’andhasexpressedthe view that unlesssuchreasons arepresent in an Appeal, Court should not interfere with anorder of acquittal (Vide Suraj Pal Singh v. The State1952 SCR 193: (AIR 1952 SC 52); Ajmer Singh vState of Punjab, 1953 SCR 418: (AIR 1953 SC 459).Theuseofthewords,‘compellingreasons’embarrassed some of the High Courts in exercisingtheir jurisdictionin appealsagainstacquittals anddifficulties occasionally arose as to what this Court had,meant by the words ‘compelling reasons’. In later years

the Court has often avoided emphasis on ‘compellingreasons’butnonethelessadheredtotheviewexpressed earlier that before interfering in appeal[with]an order of acquittal a Court must examine not onlyquestions of law and fact in all their aspects but[must]also closely and carefully examine the reasons whichimpelled the lower courts to acquit the accused andshould interfere only if satisfied, after such examinationthat the conclusion reached by the lower court that[the]guiltofthepersonhasnotbeenprovedisunreasonable.”

13. A perusal of the evidence on record goes to show that[the]trial Court, while dealing with the point ‘whether the property isdispute belongstoIndian Railways?’,uponperusalofthecontents of Ex.P1, which is in corroboration with the contents ofEx.P12, and basing on the testimony of the PW.8, cameto aconclusion that the propertyin dispute exclusively belongstoIndian Railways.The said finding remained unchallenged.trial Court, while dealing with the point ‘whether the property isdispute belongstoIndian Railways?’,uponperusalofthecontents of Ex.P1, which is in corroboration with the contents ofEx.P12, and basing on the testimony of the PW.8, cameto aconclusion that the propertyin dispute exclusively belongstoIndian Railways.The said finding remained unchallenged.

14. The other points are ‘whether the accused are foundorproved to be inpossessionof the propertyin dispute? andwhetherthepropertyindisputeiseitherstolenorunlawfully obtained,railway property?’.Itis thecaseoftheprosecution that on 26.6.2000, P.W.I, along with P.Ws.4,[6][ and]others, while conducting surprise checks at Waltair marshalingyard and its surrounding area, found A1 in possession[of][ M.Os.1]and 2 in M.0.3-bag, and he failed to produce any authority[for]possession of the same.P.W.I seized the said material objectswhetherthepropertyindisputeiseitherstolenorunlawfully obtained,railway property?’.Itis thecaseoftheprosecution that on 26.6.2000, P.W.I, along with P.Ws.4,[6][ and]others, while conducting surprise checks at Waltair marshalingyard and its surrounding area, found A1 in possession[of][ M.Os.1]and 2 in M.0.3-bag, and he failed to produce any authority[for]possession of the same.P.W.I seized the said material objects Criminal Appeal No. 1247 of 2007

in the presence of P.Ws.2and 3-mediators undercover of Ex.PlandrecordedEx.P2-confessionalstatementofA.1takingassistance of P.w.4 fortranslation purpose.Pursuant to theconfessional statementthe raiding party along with A.1 went toiron scrap shop of P.W.11who is none other thanson of A.2,and found A.2 there.On interrogation, A.2produced M.Os.4 and5 in M.0.6-polythene bagwhich were seized by P.w.1 in thepresence of P.w.5 andanother undercover of Ex.PS-seIzure listand recorded Ex.P4-confessionalstatement of A.2. by takingassistance of P,W.4 for translationpurpose.

15. Admittedly,Exs.P1toP4 weretoP4 were preparedby p.w.1inEnglish by translating the Teluguversion of A. 1 and A.2 with theassistance of P.W.4.ft is undisputed fact that P.W.1 does notknow Telugu, and A.1and A.2 know Telugu only and do not knowEnglish.But, the evidence of P.W.1iis silent with regard to theaspect that heprepared Exs.P1 to P4 by translatingthe Teluguversion of A.1 and A.2 with theassistance of P.W.4.P.W.4deposed as if p.w.1prepared Exs.P2 and P4and his evidenceis silent with regard to preparation of the said documentswith hisassistance for translating theversion of A.1 and A.2.When suchis the evidence,itcannot be inferred that Exs.P1to P4 wereprepared as per theversion stated by A.1 and A.2and that A.1English by translating the Teluguversion of A. 1 and A.2 with theassistance of P.W.4.ft is undisputed fact that P.W.1 does notknow Telugu, and A.1and A.2 know Telugu only and do not knowEnglish.But, the evidence of P.W.1iis silent with regard to theaspect that heprepared Exs.P1 to P4 by translatingthe Teluguversion of A.1 and A.2 with theassistance of P.W.4.P.W.4deposed as if p.w.1prepared Exs.P2 and P4and his evidenceis silent with regard to preparation of the said documentswith hisassistance for translating theversion of A.1 and A.2.When suchis the evidence,itcannot be inferred that Exs.P1to P4 wereprepared as per theversion stated by A.1 and A.2and that A.1

andA.2haveknowledgeaboutthecontentsofthesaiddocuments.

andA.2haveknowledgeaboutthecontentsofthesaiddocuments.

1. Further,aperusaloftheevidenceofthematerialprosecutionwitnesses,therearecontradictionsonmaterialaspects.According to P.Ws.1 and 6, pursuant to confession[of]A.1 under Ex.P2, the raiding party members, along with[A.1,][ went]to iron scrap shop of A.2 at 4.15 PM on the fateful[day.] Whereas,P.W.4, who was said to have witnessed Exs.P1 and P3-seizurelists, deposed that he along with other raiding party[members]reached the shop of A.2 at 4.45 or 5.00 PM on that[day.]Further,P.W.2, who is said to have witnessed contents of Exs.P1[and][ P2,]did not narrate the particulars of properties seized[under][ cover][ of]prosecutionwitnesses,therearecontradictionsonmaterialaspects.According to P.Ws.1 and 6, pursuant to confession[of]A.1 under Ex.P2, the raiding party members, along with[A.1,][ went]to iron scrap shop of A.2 at 4.15 PM on the fateful[day.] Whereas,P.W.4, who was said to have witnessed Exs.P1 and P3-seizurelists, deposed that he along with other raiding party[members]reached the shop of A.2 at 4.45 or 5.00 PM on that[day.]Further,P.W.2, who is said to have witnessed contents of Exs.P1[and][ P2,]did not narrate the particulars of properties seized[under][ cover][ of]Ex.P1.P.W.2 further deposed that in his presence, police[did]not question or interrogate A.1 and that he does not[know][ the]contents of the report which containedhis thumb impression.P.W.3, who is said to have witnessed the contents of[Exs.P1][ and]P2, deposed that police caught hold of A.1at Port[quarters][ in]Sambamurthy Nagar, ‘four’ years prior to his giving[evidence][ and]that being illiterate, he does not know the contents[of][ the][ report]which contained his thumb impression.not question or interrogate A.1 and that he does not[know][ the]contents of the report which containedhis thumb impression.P.W.3, who is said to have witnessed the contents of[Exs.P1][ and]P2, deposed that police caught hold of A.1at Port[quarters][ in]Sambamurthy Nagar, ‘four’ years prior to his giving[evidence][ and]that being illiterate, he does not know the contents[of][ the][ report]which contained his thumb impression.

16. Furthermore,P.W.5,whoissaidtobeindependentmediator in whose presence M.Os.4 to 6 were seized[from][ the]mediator in whose presence M.Os.4 to 6 were seized[from][ the]

possession of A.2 basing on Ex.P2-confessional statementofA.1, did not support the prosecution version and he was declaredhostile.P.W.5 deposed that at therequest of police, he put histhumb impression on whitepaper and he does not know namesof the accused and he did not see contents of the bag seized.Though P.W.5 was cross-examined by the prosecution with thepermission of the Court, nothing has been elicited to incriminatethe accused.In view of the aforesaid material inconsistenciesithe version of material prosecution witnesses, this Court has nohesitation to hold that the prosecution failedtoestablishthe[n]seizureof thematerialobjects fromthepossessionoftheaccused, and the accused are entitled to benefit of doubt,Thetrial Court, upon considering the evidenceonrecordinrightperspective, rightly found the accused not guilty of the chargelevelled against them, and there are no compelling or substantialreasons to interfere with the judgment of acquittal passed by thetrial Court. The Criminal Appeal is devoid of merits.

17. Accordingly, the Criminal Appeal is dismissed, confirmingthe judgment dated 22.04.2003 passed in CC No.19 of 2001 bythe learned VI Metropolitan Magistrate for Railways,[Waltair.]the judgment dated 22.04.2003 passed in CC No.19 of 2001 bythe learned VI Metropolitan Magistrate for Railways,[Waltair.]

As a sequel thereto, the miscellaneous applications,ifany.

pending in this Criminal Appeal shall stand closed.

To

SD/-VDIWAKARDEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

1. The VI Metropolitan Magistrate for Railways, Waltair, VisakhapatnamDistrict.District.

2. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh,Amaravathi [OUT]Amaravathi [OUT]

3. One CC to Sri VV N Narasimham, Advocate [OPUC]

4. One CC to SriI Naveen Kumar, Advocate [OPUC]

TK

5. Three CD Copies

HIGH COURT

DATED:12/03/2025

JUDGMENTCRLA.No.1247 of 2007

.Current Section

DISMISSING THE CRIMINAL APPEAL

TK