IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1603 of 2005 Between: The Sub-Inspector of Police, RPF/Gudivada Out post, represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Appellant AND Nagal Raju and 3 others .. Respondents JUDGMENT: The State represented by the learned Public Prosecutor filed the appeal against the acquittal of the 4th accused in C.C.No.222 of 2003 on the file of VII Metropolitan Magistrate for Railways, Vijayawada, by the judgment dated 24-03-2005. The factual background for the appeal is that four accused were prosecuted for the alleged offences punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and accused 1 to 3 pleaded guilty to the said charge before the trial Court and were accordingly found guilty, convicted and sentenced. The case against 4th accused was split up as he denied the charge and pleaded not guilty when he was also examined after he entered appearance before the trial Court and after he was furnished with the copies of documents. C.C.No.222 of 2003 proceeded to be tried by examining PWs.1 to 8 and marking Exs.P.1 to P.23 and M.Os.1 to 9 during trial. The 4th accused denied the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 of the Code of Criminal Procedure and he produced no defence evidence. The trial Court rendered the impugned judgment in respect of the 4th accused noting that PW.1 did not assign any reason for not obtaining a search warrant from the competent Court in spite of having prior information. Consequently, the search conducted by PW.1 was held to be not in accordance with Section 10 of the Railway Property (Unlawful Possession) Act. The non-disclosure of the purpose for which the documents concerning the search were drafted by PW.7 was also considered as doubtful circumstance, apart from Ex.P.13 statement from PW.7 being recorded 20 days after the arrest of the 4th accused. While doubting the presence of PW.7 at the time of alleged arrest of the 4th accused, the trial Court also doubted the identity of M.O.7 as railway property and further referred to the discrepancies about the location of the shop of the 4th accused, which created a doubt about the existence of such shop in Ayodhyanagar as alleged by the prosecution. Therefore, the benefit of reasonable doubt was extended to the 4th accused, who was accordingly acquitted and the trial Court also further directed that while destroying M.Os.1, 3 and 5 and returning M.Os.2, 4, 6 and 7 to the railway authorities, M.Os.8 and 9 shall be returned to the 4th accused after appeal time. The State challenged the said judgment contending that the identity of M.O.7 as the railway property was spoken to by the Expert PW.4 and when PW.7, the independent mediator, fully corroborated the evidence of PW.1, the trial Court ought not to have disbelieved the arrest of the 4th accused and the seizure of properties. There was no time to obtain a search warrant as the information about the involvement of the 4th accused was known only after the arrest of the accused 1 to 3 and hence, the impugned judgment is requested to be reversed. Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor and Sri V. Surender Reddy, learned counsel for the accused are heard at length. The point for consideration is whether the guilt of the 4th accused for the alleged offence was proved beyond reasonable doubt? Ex.P.1-theft report did not identify the culprits or suspects involved in the theft of the railway properties. While the report of theft was on 03-03-2003, it was only on 12-05-2003 that the accused 1 to 3 were alleged to have been caught while carrying the stolen railway properties. It was only the alleged confessions of accused 1 to 3 that allegedly led the police to take accused 1 to 3 to the shop of the 4th accused where the 4th accused was also claimed to have confessed his involvement in purchase of stolen railway property. M.O.8-cycle rickshaw and M.O.9-cash of Rs.7,500/- were claimed to have been seized in pursuance of the confession of the 4th accused about the use of rickshaw in transporting the stolen goods and the realization of the cash seized by sale of stolen goods. Though PW.1 is interested in the prosecution only in discharge of his official duty, at the same time, he cannot be considered to be a totally independent witness and it will be an acceptable rule of prudence to look for satisfactory corroboration for his claims. The positive evidence of PW.1 was about the shop of the 4th accused being located at Ayodhyanagar as certified by Ex.P.19-letter from the Assistant City Planner, Vijayawada. While PW.1 admitted that he did not obtain any search warrant to search the premises of the 4th accused, he did not state positively that he had no time to obtain such a search warrant as is now sought to be contended in the grounds of appeal. PW.7 is the only other witness, who was examined by the prosecution to corroborate the claims of PW.1 and he also attempted to allege the 4th accused having confessed his involvement in the crime. But his statement that the shop of the 4th accused is located on the footpath is contrary to the specific evidence of PW.1 and the corroborating evidence sought to be relied on by him concerning the location of the shop. The manner in which the search and seizure were claimed to have been conducted does not probablise the possibility of the activities of the 4th accused being run from the footpath. It was clearly alleged in the mediator’s report that there was a platform and a weighing machine apart from a compound wall in the said shop and the trial Court, which had the opportunity of observing the demeanour of the witnesses in flesh and blood, had noted that the evidence of PW.1 did not disclose any urgency for inspecting the shop of the 4th accused and the trial Court also noted that if the 4th accused was running his business by encroaching upon the footpath, the premises would not have been described as a shop located at Ayodhyanagar, which also created a doubt in favour of the 4th accused. When the statement of PW.7 was recorded after 20 days after the arrest of the 4th accused and when PW.7 was unable to say the purpose for which the documents were executed and signed by him, the evidence of PWs.1 and 7 may not be capable of being construed as sufficient for proving the alleged recovery of the properties or the confession of the 4th accused. Insofar as the alleged confession of accused 1 to 3 implicating the 4th accused is concerned, it is clear that any confession by an accomplice may be open to be taken into consideration by virtue of Sections 30 and 133 of the Evidence Act. But it is well recognized that it will be a reasonable rule of prudence to look for independent corroboration to such claims of an accomplice. Precedents have laid down that such a rule of prudence is universally followed, as to almost amount to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. Therefore, either the alleged confessions of accused 1 to 3 or their plea of guilt in the criminal case cannot be taken as proving the guilt of the 4th accused by themselves. Insofar as the alleged confession of the 4th accused himself before PWs.1 and 7 is concerned, only the discovery of any fact in consequence of such information furnished by the 4th accused can be proved before the Court within the limitations of Section 27 of the Evidence Act read with Sections 25 and 26 thereof. Here, the discovery of M.O.8-cycle rickshaw or M.O.9-cash cannot be construed by themselves to be leading to any establishment of any link with the alleged offences for the 4th accused. It is only the recovery of M.O.7 (10 Nos. of C.S.T.-9 plates) allegedly from the possession of the 4th accused that can be attempted to be construed as the discovery of a fact that can link the 4th accused with the offence. But, in the light of other circumstances stated above and by the trial Court, the same cannot be taken as proved or as proving the guilt of the 4th accused beyond reasonable doubt. If so, the acquittal of the 4th accused for the offence cannot be interfered with in this appeal and the consequent property order passed by the trial Court returning M.Os.8 and 9 to the 4th accused also cannot be questioned, and hence, the appeal should fail. In the result, the appeal is accordingly dismissed. _____________________ G. BHAVANI PRASAD, J Date: 11-02-2010 Ksn