IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI^ THURSDAY, THE THIRD DAY OF APRIL TWO THOUSAND AND TWENTY FIVE o o 'm PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO: 712 OF 2008 Appeal under Section 378 (3) & (1) of Cr.P.C., against the judgment in S.C.No. 194 of 2006 on the file of the VIII Additional District and Sessions Judge, (FTC) Vijayawada, dated 6*^ day of December, 2006. Between: The State of A.P., rep.by the Public Prosecutor, High Court of A.P. Hyderabad ...Appellant/Petitioner AND 1. Patan Naushad Khan, S/o. Late P.Azgar Ali Khan, 39 years, D.No. 23/90, R/o. Vazipura Agra, U.P.State 2. Sheik Shamshad Javed, S/o. Murtaja Zameer, 25 years, R/o. Jamalpur (V), Darbhanga District, Bihar State. 3. Pramod Kumar, S/o. Dilip Singh, 38 years, R/o. Linepar, Nawab Ka Hatta (V), Bijnaur District, U.P.State. 4. Faisal Masoon Khan, S/o. Mahmood Khan, 36 years, R/o. Alam Baghm, Bambola, Gali No.3, Civil Line, Aligarh, U.P. State. ...Respondents/Accused Counsel for the Appellant: Public Prosecutor Counsel for the Respondents: Sri V R Reddy Kovvuri The Court made the following order: THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL APPEAL No.712 OF 2008 JUDGMENT : The present appeal, under Section 378 (3) and (1) of the Code of Criminal Procedure, 1973, is filed against by the State the judgment dated 06.12.2006 passed in S.C.No.l94 of 2006 by the learned VIII Additional District & Sessions Judge, (FTC), Vija^yawada, whereby the respondents 1 to 4 herein/accused Nos.l to 4 were acquitted of the offences punishable under Sections 328 and 379 read with 34 of the Indian Penal Code, 1860 (for short, IPC’) or alternatively Section 411 read with 34 IPC. 2. Brief facts of the case are that, on 13.03.2005 while P.W.3- Bhattiprolu Ravi Shankar was travelling in Train No.7204 Lok Manya Tilak Express from Vijayawada to Secunderabad in the Reservation Compartment, at about 12.00 hours, one unknown offender had a talk with him, introducing himself as a Textile Business man, and offered a Biscuit to him. After eating the Cream Biscuit, he fell unconscious. The offender committed theft of Rs.5,000/-, two gold rings. Gold Bracelet, Laptop, Gold Chain with Saibaba locket and Nokia Cell Phone from him. 2 On the iintervening night of 7/8-01-2005, P. W. 1 - Surampudi Visaka Express go to Visakhapatnam Prabhakara Lakshmi Narasimham boarded No.7016 at Secunderabad Railway Station to occupied berth No.5 in SI Coach. and During journey, four unknown offenders made friendship with him and offered a cream biscuit at Guntur Railway Station. He ate the same and efll unconscious. The offenders committed theft of V.I.P. Alfa Brief Samsung Cell Phone Pass Book, House Case containing Rs.8,000/-, Charger, Cheque Book, one with duplicate Keys, Bank, Madurawada locker Visakhapatnam Cooperative Digital diaiy, I.D. Cards keys. etc., from him. P.W.3 reported the incident at G.R.P. Station, Secunderabad R.P. Station, registered the case in Crime No.54 of took up investigation, examined and gave a report to P.W.5/R.P.S.1, Secunderabad Basing on the same, P.W.5 2005 of Secunderabad R.P.S and P.W.3, recorded his statement for treatment. Later, on P.W.5 transferred the and sent him to Gandhi Hospital case to Guntur R.P. Station on jurisdiction point. LW15/B.Chennaiah, Guntur R.P. Station received the F.I. R.P.S.I., R. and re-registered the in Cr.No.54 of 2005 and took up investigation. case P.W.l gave a statement to P.W.6-P.Raja Visakhapatnam, R.P. Station, Rao, R.P.S.I. re-registered the case in Crime No.6 3 of 2005 and took up investigation. He sent P.W.l to Queens Hospital, Visakhapatnam for treatment and also examined P.W.l and LW.3(Surampudi Krishna Kishore), recorded their statements and transferred the case to Guntur R.P.Station on point of jurisdiction which was registered as F.l.R. in Cr.No. 106/2005 of Guntur Railway Police Station. On 11.09.2005, LW16/T.Sankar Reddy, Inspector of Railway Police Station, Guntur, took investigation from LW15/B.Chennaiah, R.P.S.I., R.P.Station as per the orders of Superintendent of Railway Police, Vijayawada. up During the course of investigation, on 21.04.2006, P.W.8- Bhaskara Naidu, Inspector of Railway Police, Guntakal arrested the accused Nos.l to 4 in the presence of mediatoars and seized the property in Crime No.54 of 2005 i.e. one Gold Chain with Saibaba locket and one V.l.P. Brief Case in Crime No. 106 of 2005 of Guntur R.P.S. and drafted the mediators report duly attested by them. On receipt of Radio Message from I.R.P., Guntakal, I.R.P., Guntur filed a memo before the Magistrate and obtained P.T. warrants and produced the accused before II Metropolitan Magistrate for Railways, Vijayawada, in both the cases 29.05.2006. The Magistrate remanded them for judicial custody. LW16/T.Sankar Reddy, Inspector of Railway Police Guntur, took the accused for police custody on 14.06.2006 and interrogated on 4 them. The accused stated the On 25.06.2006, Railway Police, Guntur got the the proceedings were written, police laid charge sheet. same facts as they confessed before LW16-T.Sankar Reddy, Inspector property identified by P.Ws. 1 and 3 After completion of investigation. P.W.8. of 3. The learned Magistrate took against the accused cognizance of the offences as P.R.C.No.19 of 2006 on the file of the II Metropolitan Magistrate for Railways, Vijayawada, of the offences is triable by the Court of Session, PRC to the Court of Session. The 2006 and made with law. and as the one committed the case was assigned S.C.No.l94 of over to the trial Court for disposal in accordance 4. On production of the accused before the learned Sessions Judge, and after hearing the Additional Public Prosecutor on behalf of the State, and the learned State brief for the charges for the offences under Section 328 read with 34 IPC read with Section 34 IPC, or alternatively Section 411 read with 34 of the IPC, were framed, read over and explained to the accused i__ Hindi. The accused pleaded not guilty and claimed to be tried. 5. To substantiate the case of the prosecution, PWs. 1 to 8 examined and Exs.Pl to PIO and MOs.l 2 were got marked. accused. & 379 m were 5 After closing the evidence of prosecution, the accused were 6. examined under Section 313 Cr.P.C. to explain the incriminating evidence against them in the evidence of prosecution witnesses. The accused pleaded innocence and denied the incriminating evidence of prosecution witnesses. No witnesses were examined on behalf of the accused and no documents were marked on their behalf. 7. The learned Sessions Judge, upon appreciation of the evidence on record, found the respondents/A. 1 to A.4 not guilty of the charges levelled against them and accordingly acquitted them of the said charges. Challenging the same. State preferred the present Criminal Appeal. 8. Learned Additional Public Prosecutor submits that the witnesses are capable of identifying the accused for the reason that the incident is said to have taken place in the month of January, 2005, and the accused were identified by the witnesses in the year 2006. According to him, there is no much of time gap to lose memory by the witnesses. He further emphasized that non conducting of Test Identification Parade, would not, by itself, is a ground to brush aside the entire prosecution case and ignore identification of the accused by the witnesses in Court. 6 The learned Additional PubHc Prosecution that the investigating officer of A3 and by virtue of the accused are the further submitted recovered the articles from the house same, it can be safely inferred that the persons who committed theft of those since same were recovered from the house of articles accused No.3. trial Court has not considered It is his submission that the these aspects in right perspective and erred i acquitting the accused of in the charges levelled against them. 9. On the other hand, learned counsel the accused submitted that when the to the material appearing on behalf of accused are utter strangers non conducting Test prosecution witnesses. Identification Parade is fatal to the prosecution case. He further submitted that the police officer who visited Tirupati recovered the articles from the house of A3, contemplated under Cr.P.C. for did not follow the procedure recovering the material objects from the house of A.3, and the procedure adopted by the Inspector for recovering the articles from the house of A3, is unknown. He further emphasized that the incident is said to have been taken place in the month of January, 2005 and the recovery has been made at a belated stage, and therefore, it cannot be expected that the accused who committed theft of articles in their house for long period. articles would keep the He submits that the trial 7 Court, considering these aspects, rightly found the accused not guilty of the charges, and there are no grounds to interfere with the impugned judgment. 10. Now, the point for that arises for eonsideration is whether the prosecution is able to bring home the guilt of the aecused beyond reasonable doubt for the charges levelled against them and whether the impugned judgment needs any interferenee by this Court ? 11. This is an appeal against an Order of acquittal. There is a presumption available under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocenee 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 evidenee, at the same time, it would be slow in interfering with the order of acquittal because presumption available under law is further strengthened by the order of acquittal. Unless there 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 are 8 into for the purpose of arriving at a particular Ending, then also it compelling reason to interfere with the can be said to be a same. 12. On this aspect, it is pertinent to refer to a decision in V. the State of Punjab^ wherein it Harbans Singh & another was held as follows: (para 8) ‘The question as regards the correct princioles to he applied by a Court hearing an appeal against acquittal of a person has engaged the attention of L Co^rom ote thfCou®rt I 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 haf expressed the view that unless such an Appeal, Court should reasons are present in ., , n T- 1 uot interfere with an order of (MR 1952 SC 52); Ajmer Singh v. State of Puniab 19^”^ SCR 418; (AIR 1953 SC 45I). The use o^^thfwords compelling reasons embarrassed some of the High Courts an?difficul?i ^Sainst acquittals and difficulues occasionally arose as to what this Court had, meant by the words ‘compelling reasons’. In later years the Court has often avoided emphasis on ‘compelhng reasons but nonetheless adhered to the view expressed earlier that before interfering in appeal with an orfer of acquittal a Court must examine not only questions of law and fact m all their aspects but carefully examine the m must also closely and , . . reasons which impelled the lower courts to acquit the accused and should interfere only if ScfeH h examination that the conclusion reached by the lower court that the guilt of the not been proved is unreasonable.” person has 13. The charge against the intervening night, the accused administered stupefying drug to P.W. 1 accused is that on 7.8.2005 with a common intention, at Guntur railway station air 1962 sc 439 9 while he was travelling in S.l coach of train No.7016 Lokmanya Tilak Express, and on 13.3.2005 at about 12.00 hours in train NO.7204 Lokmanya Tilak Express between Vijayawada and Secunderabad, the accused offered stupefying drug to P.W.3, with an intention to commit theft from them, and the accused committed the said act in furtherance of common intention of all of them and thereby committed an offence punishable under Section 328 read with 34 IPC. The second charge is that the accused, on the day, time and place mentioned in the aforesaid charge, in furtherance of their common intention, committed theft of VIP Ulfa brief case containing cash of Rs.8,000/-, one Samsung Cell phone with charger, cheque book of Koti branch and cheque book pass book, house duplicate keys, Visakhapatnam Corporation Bank, Madhurawada locker keys. Digital diary, I.D. cards from P.W.l and cash of Rs.5,000/-, 2 gold rings, gold bracelet. Laptop computer, gold chain with Saibaba Locket and Nokia Cell phone from P.W.3, and thereby they committed an offence punishable under Section 379 read with 34 IPC. Alternative charge is that the accused were found in possession of stolen property having reason to believe it as stolen property, and thereby committed an offence punishable under Section 411 read with 34 IPC. 10 14. A perusal of the evidence culprits are strangers to the vi meeting in a train. on record goes to show that the victims. Their meeting is a chance The victims have no previous acquaintance a case, m order to identify the culprits, investigating agency to conduct with the culprits. In such it is essential on the part of the i Test Identification Parade, the persons who committed theft of the establish and link the accused to the aforesaid crime is to conduct as to ascertain that the accused so are articles. The only mode to Test Identification Parade and make the witnesses to identify the record that no T.I.P. has been Further accused. It is apparent from the conducted by the police. more, the prosecution witnesses did not identify all the accused in the Court, and only A.2 and A3 were identified. When the offence occurred during test identification night hours, in the absence of conducting the parade, identification of the culprits by the prosecution witnesses for the first time in the Court, is not sufficient to hold that the the culprits, identification parade is fatal to the accused are and non-conducting the test case of prosecution. 15. As regards seizure of the N.Bhaskara Naidu, who property, the evidence of P.W.8- was working as Inspector of Police, IS relevant. According to him, he seized all the properties in the crimes in which four persons are the accused. Guntakal G.R.P., 11 f His evidence goes to show that on 21.04.2006 at about 20.30 hours, he arrested A.l to A.4 on Platform No.5 of Guntakal railway station on suspicion, and basing on their confession, they proceeded to Tirupati, and on 22.04.2006 at about 10.00 hours, he seized one Nokia Cell phone relating to crime no.3 of 2006 of Eluru G.R.P.; he seized one ordinary gold chain relating to crime no.65 of 2006 of Vijayawada G.R.P. and he also seized the P.W.2- properties involved in other crime numbers. G.P.Viswanadha Reddy, was working as Village Secretary in According to his evidence. Revenue Department, Guntakal. himself and P.W.8 went to Tirupati and seized the material objects As can be seen from the from A.3 under Ex.P3-seizure report. evidence on record, police failed to follow the procedure contemplate under Section 100 (4) CrPC at the time of seizure of The time of the search and seizure of the material objects. material objects in the house of A.3 in Tirupati is at 10.00 AM on But, presence of no local inhabitants or mediators was secured for witnessing the search and seizure of the material It is not an odd or eve hours of the day. It is not the case of the prosecution that though they requested, no local 22.4.2006. objects. inhabitant or mediator came forward to act as mediators for the In the absence of the same, there is any search and seizure. 12 amount of ambiguity with material objects, by the police, prosecution failed to objects. regard to the search and seizure of the can be held that the Therefore, it establish search and seizure of material 16. In view of the aforesaid hesitation to hold that is fatal to the the accused for the first ti find the accused Further, the discussion, this Court has conducting of test identificati no non- on parade n of some of open Court, is not sufficient to gtulty of the charges levelled prosecution case, and the identificatio time in against them. prosecution also failed to adhere to the procedure seizure of the material objects. contemplated for search and sei The trial Court, upon considering these accused not guilty of the aspects, rightly found the charges levelled against them and accordingly acquitted them compelling or substantial judgment. of the said charges, reasons to interfere with the i There are no impugned 17. Accordingly, the Criminal Appeal the judgment dated 06.12.2006 the learned VIII Additional Vijayawada. is dismissed, confirming passed in S.C.No.l94 of 2006 by District & Sessions Judge, (FTC), 13 As a sequel, pending miscellaneous petitions, if any, shall stand closed. Sd/- K. TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The VIII Additional District and Sessions Judge, (FTC) Vijayawada, Krishna District. (With Records) 2. The II Metropolitan Magistrate’s Court for Railways: Vijayawada, Krishna District. 3. The Station House Officer, Vijayawada Railway Police Station, Krishna District. 4. One CC to Sri V R Reddy Kovvuri Advocate [OPUC] 5. Two CC's to The Public Prosecutor, High Court of Andhra Pradesh at Amaravati [OUT] 6. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravati. 7. Two CD Copies SAM HIGH COURT DATED:03/04/2025 S? ANDMT^ r JUDGMENT CRLA.No.712 of 2008 X Ptjut2«?5 ^ Cuttent Secnon OesPATC*^ ' DISMISSING THE CRIMINAL APPEAL