The Senior Secrity Commissioner, Vs Charakatam Trinadha Rao

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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WEDNESDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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HONOURABLE SRI JUSTICE K SREENIVASA REDDY

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CRIMINAL APPEAL No.1247 of 2007

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Appeal under Section 378(4) (5) & (1) of Cr.P.C 1973, against the Judgment in CC No. 19/2001 on the file of the VI Metropolitan Magistrate for Railways, Waltair, Visakhapatnam District, dated the 22"'^ day of April, 2003.

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Between:

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The Senior Security Commissioner, rep.by the Public Prosecutor, High Court of Andhra Pradesh, at Amaravati.

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...Appellant

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AND

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

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Visakhapatnam District.

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

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...Respondents

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Counsel for the Appellant : Public Prosecutor

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Counsel for Respondent No.1: Sri I Naveen Kumar

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Counsel for Respondent No.2: Sri V V N Narasimham

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The Court made the following:

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APHC010456932007

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

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WEDNESDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

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CRIMINAL APPEAL NO: 1247/2007

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Between:

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The Senior Secrity Commissioner

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...APELLANT

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AND

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Charakatam Trinadha Rao and Others

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...RESPODENT(S)

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Counsel for the Apellant:

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PUBLIC PROSECUTOR (AP)

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Counsel for the Respodent(S):

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1.1 NAVEEN KUMAR

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2.VV N NARASIMHAM

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The Court made the following Judgment:

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This Criminal Appeal has been preferred by the State against the judgment of acquittal dated 22.04.2003 passed in CC No. 19 of 2001 by the learned VI Metropolitan Magistrate for

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Railways, Waltair.

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Brief facts of the case are that on 26.6.2000, P.W.1, along with P.Ws.4, 6 and others, while conducting surprise^rounds at

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Waltair marshaling yard and its surrounding area, at 2.20 pm.

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^ . SRK, J Criminal Appeal No. 1247 of 2007

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they found A1 carrying something heavy in an oid cement poiythene bag on his right hand in a suspicious manner at Samba Murthy Nagar road. On that, the raiding party detained him and found 8 kgs of broken pieces of railway distributary valve and four elastomeric rubber pads in the said polythene bag, in his possession. On demand, A1 failed to produce proper authority or receipt for possessing the said railway articles and thereupon P.W.1 seized the said articles from the possession of A1 under the cover of a seizure list, arrested him and recorded his confessional statement. During the course of interrogation,^A1 confessed that he used to dispose of the railway material to A2 at his shop at Dondaparthi. Hence, a case has been registered against A1 and A2 in Crime No.28 of 2000 for the offences punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. Thereafter, the raiding party along with A1 and independent witness, went to the shop of A2 at Dondaparthi, and on interrogation A2 produced three Aluminum window shutter and 4 Kgs of broken pieces of distributary^valve kept in an old cement polythene bag. Thereupon, P.W.1 seized the said property from the possession of A2 under the cover of seizure list. A.1 and A.2 were arrested and sent judicial custody.

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SRK, J Criminal Appeal No.1247 of 2007

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During the course of investigation, the statements of witnesses were recorded, and theft memo in connection^withthe property in dispute was received from the concerned. Having received requisition, PW10 issued ownership certificate stating that the shop situated in Dondaparthi is in the name of PW9, who is none other than the wife of A2. After receipt of all the necessary certificates and completion of enquiry, a report filed against the accused.

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The learned Magistrate took cognizance of the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 against the accused. After furnishing copies of documents to the accused as required under Section 207 Cr.P.C., charge for the aforesaid offence was framed by the learned Magistrate against the accused. When the charge^was read over and explained to them, the accused pleaded not guilty and claimed to be tried.

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

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After closure of the prosecution evidence, A1 and A2^were examined under Section 313 Cr.P.C., explaining the incriminating

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material found against them in the evidence of prosecution witnesses, for which they denied.

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After hearing both sides, the trial Court found A1 and A2 are not guilty of the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and accordingly, acquitted them of the charge leveled against them. Against the said acquittal, the present Criminal Appeal has been preferred by the State.

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

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Learned Assistant Public Prosecutor appearing on behalf^of the appellant submitted that from the evidence of the material prosecution witnesses, coupled with Exs.P1 to P4, the prosecution is able to establish that the accused were found in possession of railway property illegally and the same^wasseized from their possession, and hence, the prosecution is able to bring home the guilt of the accused beyond reasonable doubt,^butthe learned Magistrate attached much weight to minor contradictions and discrepancies and erred in acquitting the accused.

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On the other hand, learned counsel appearing on behalf^of the respondents submitted that the evidence of PWs.1 to 6 is inconsistent with the contents of EXs.P1 to P4, and^there are discrepancies in the evidence of material prosecution^witnesses on material aspects, and the prosecution failed to establish that the accused were found in possession of the railway property, and the learned Magistrate rightly found the accused not guilty of the charge leveled against them and prays to dismiss the appeal.

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Now, the point that arises for consideration is whether the prosecution is able to establish the guilt of the respondents/ accused for the offence with which they were charged, and whether the order of acquittal recorded by the trial Court requires interference by this Court ?

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This is an appeal against an Order of acquittal. There^isa presumption available under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with^theorderof acquittal because presumption available under law is further

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Strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same.

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On this aspect, it is pertinent to refer to a decision i n Harbans Singh & another v. the State of Punjab\ wherein it was held as follows: (para 8)

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The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially^the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on ‘compelling and substantial reasons’ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal (Vide Suraj Pal Singh v. The State 1952 SCR 193: (AIR 1952 SC 52); Ajmer Singh v State of Punjab, 1953 SCR 418: (AIR 1953 SC 459). The use of the words, ‘compelling reasons’ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words ‘compelling reasons’. In later years

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^ AIR 1962 SC 439

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the Court has often avoided emphasis on ‘compelling reasons’ but nonetheless adhered to the view expressed earlier that before interfering in appeal^with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but^must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that^the guilt of the person has not been proved is unreasonable.”

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A perusal of the evidence on record goes to show that^the

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trial Court, while dealing with the point ‘whether the property is dispute belongs to Indian Railways ?’, upon perusal of the contents of Ex.P1, which is in corroboration with the contents of Ex.P12, and basing on the testimony of the PW.8, came to a conclusion that the property in dispute exclusively belongs to Indian Railways. The said finding remained unchallenged.

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The other points are ‘whether the accused are found or proved to be in possession of the property in dispute? and whether the property in dispute is either stolen or unlawfully obtained, railway property?’. It is the case of the prosecution that on 26.6.2000, P.W.I, along with P.Ws.4,^6and others, while conducting surprise checks at Waltair marshaling yard and its surrounding area, found A1 in possession^ofM.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

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in the presence of P.Ws.2 and 3-mediators under cover of Ex.Pl and recorded Ex.P2 -confessional statement of A.1 taking assistance of P.w.4 for translation purpose. Pursuant to the confessional statement the raiding party along with A.1 went to iron scrap shop of P.W.11 who is none other than son of A.2, and found A.2 there. On interrogation, A.2 produced M.Os.4 and 5 in M.0.6-polythene bag which were seized by P.w.1 in the presence of P.w.5 and another under cover of Ex.PS-seIzure list and recorded Ex.P4-confessional statement of A.2. by taking assistance of P,W.4 for translation purpose.

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Admittedly, Exs.P1 to P4 were prepared by p.w.1 i n English by translating the Telugu version of A. 1 and A.2 with the assistance of P.W.4. ft is undisputed fact that P.W.1 does not know Telugu, and A.1 and A.2 know Telugu only and do not know English. But, the evidence of P.W.1 i is silent with regard to the aspect that he prepared Exs.P1 to P4 by translating the Telugu version of A.1 and A.2 with the assistance of P.W.4. P.W.4 deposed as if p.w.1 prepared Exs.P2 and P4 and his evidence is silent with regard to preparation of the said documents with his assistance for translating the version of A.1 and A.2. When such is the evidence, it cannot be inferred that Exs.P1 to P4 were prepared as per the version stated by A.1 and A.2 and that A.1

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and A.2 have knowledge about the contents of the said documents.

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Further, a perusal of the evidence of the material prosecution witnesses, there are contradictions on material aspects. 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-seizure lists, 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^andP2, did not narrate the particulars of properties seized^undercoverof

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Ex.P1. P.W.2 further deposed that in his presence, police^did not question or interrogate A.1 and that he does not^knowthe contents of the report which contained his thumb impression. P.W.3, who is said to have witnessed the contents of^Exs.P1and P2, deposed that police caught hold of A.1 at Port^quartersin Sambamurthy Nagar, ‘four’ years prior to his giving^evidenceand that being illiterate, he does not know the contents^ofthereport which contained his thumb impression.

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Further more, P.W.5, who is said to be independent mediator in whose presence M.Os.4 to 6 were seized^fromthe

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possession of A.2 basing on Ex.P2-confessional statement of A.1, did not support the prosecution version and he was declared hostile. P.W.5 deposed that at the request of police, he put his thumb impression on white paper and he does not know names of the accused and he did not see contents of the bag seized. Though P.W.5 was cross-examined by the prosecution with the permission of the Court, nothing has been elicited to incriminate the accused. In view of the aforesaid material inconsistencies i n the version of material prosecution witnesses, this Court has no hesitation to hold that the prosecution failed to establish the seizure of the material objects from the possession of the accused, and the accused are entitled to benefit of doubt, The trial Court, upon considering the evidence on record in right perspective, rightly found the accused not guilty of the charge levelled against them, and there are no compelling or substantial reasons to interfere with the judgment of acquittal passed by the trial Court. The Criminal Appeal is devoid of merits.

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Accordingly, the Criminal Appeal is dismissed, confirming the judgment dated 22.04.2003 passed in CC No.19 of 2001 by the learned VI Metropolitan Magistrate for Railways,^Waltair.

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As a sequel thereto, the miscellaneous applications, if any.

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pending in this Criminal Appeal shall stand closed.

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To

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//TRUE COPY//