IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIRST DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1167 OF 2009 Between: The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND Arun Singh ..... Accused/Respondent The Court made the following: JUDGMENT: The criminal appeal under Section 378(1) and (3) of Cr.P.C., is directed by the State against the judgment, dated 17.11.2006, made in S.C.No.286 of 2006, on the file of the learned II Additional Assistant Sessions Judge (FTC), Nellore, whereunder and whereby, the first respondent/first accused herein was found not guilty for the charges under Sections 395, 398, 379 and 411 IPC. 2. The case of the prosecution in brief may be stated as follows: On 15.12.2005 at about 21.30 hours, P.W.2 gave a cash of RS.2,00,000/- to P.W.1 asking him to hand over the said cash to one Krishnappa, a resident of Kolar in Karnataka state. P.W.1 kept the cash in his waist which is inside his dress and reached Erode on 16.12.2005 at about 1.00 a.m., and boarded Rajkot Express in a Second Class General boghie. At about 4.30 or 5.00 a.m., after crossing Thirupattur railway station, A1 and others threatened P.W.1 at the point of knives and snatched cash of Rs.2,00,000/- by cutting his dress. Later, the assailants jumped from the train and escaped, while the train was reaching Kuppam Railway Station. When the train reached Bangarupet, the victim got down from the train and went to Kuppam Railway Outpost Police Station. Thereafter, the victim went to Chittoor Railway Police Station and presented written report to the Sub-Inspector of Police. The police registered the case. During the course of investigation, on 10.03.2006 at about 3.00 p.m., the Inspector of Police, Railways, Renigunta, arrested A1 on the northern side of the platform at Renigunta Railway Station and seized a cash of Rs.35,200/-, rexin bag, cotton cloth of pouch and knife from his possession. The police gave a requisition to the learned II Additional Judicial Magistrate of I Class, Nellore, to conduct Test Identification Parade on A1 on 01.04.2006, at Central Prison, Nellore. Hence, the charge. 3. Upon hearing both sides and perusing the record on 20.09.2006, the trial Court framed the charges under Sections 395, 398, 379 and 411 IPC against A1. When the charges were read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P7 besides case properties M.Os.1 to 7. 5. After closure of the prosecution evidence, the first accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the first accused, no evidence either oral or documentary was adduced. 6. The trial Court has not placed any reliance on the evidence of P.W.1 with regard to his identification of the first respondent herein in the Test Identification Parade conducted by the learned Magistrate as the photograph of the petitioner was shown to P.W.1 prior to conducting Test Identification Parade and accordingly acquitted him. Challenging the same, the present criminal appeal is filed by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the first accused of the charges under Sections 395, 398, 379 and 411 IPC and whether the judgment of the trial Court is correct, legal and proper? 8. There cannot be any dispute that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. The presumption of innocence is further strengthened by an order of acquittal. Therefore, the appellate Court is slow in interfering with the order of acquittal unless the findings are perverse or based upon not proper appreciation of evidence on record, or inadmissible evidence was taken into consideration, or admissible evidence was overlooked. The incident has taken place at the early hours of the day on 16.12.2005. While P.W.1 was coming out from the bathroom, A1 along with some others robbed a cash of Rs.2,00,000/- by cutting the clothes and by pointing the knives. The descriptive particulars of the first respondent herein has not been stated in the First Information Report except stating that some persons were in the age group of 32 to 35 years and others were in the age group of 50 years and above. 9. As seen from the charge sheet, A1 was in the age group of 25 years. Except mentioning about the age, there is no other descriptive particulars of the first accused. On 10.03.2006, while he was present in the Renigunta platform, he was arrested on the northern side of the platform at Renigunta Railway Station by the Inspector of Police, Railways, Renigunta, and a cash of Rs.35,200/- was seized from him. The currency note numbers have not been mentioned in the Mediator's report and further, there is no evidence to show that the currency notes that were seized from the possession of A1 herein was the theft or decoity property committed on the early hours of the day on 16.12.1995. The currency notes which were seized from the possession of A1 were available in general public and the finding of cash of Rs.35,200/- by itself is not a ground to draw a presumption that it was a stolen property or a decoity property. Therefore, seizure of M.O.7-cash from the possession of A1 cannot be said to be an incriminating circumstance against him, as it was not shown to be a stolen property. 10. Coming to the identity of the first accused, about 3½ months after the incident, the first respondent/first accused was subjected to Test Identification Parade. Normally, the Test Identification Parades will be conducted during the course of investigation to enable the witnesses to identify the assailants when they have no prior acquaintance with them. Admittedly, in this case P.W.1 had no prior acquaintance with the first accused. Perhaps, that is the reason why the police rightly sent a requisition to the concerned Magistrate to held Test Identification Parade. It is in the evidence of P.W.1 that before conducting the Test Identification Parade, the photograph of the first respondent/A1 was shown to him which enabled P.W.1 to identify A1. Before conducting the Test Identification Parade by the concerned Magistrate, if the photograph of the assailant was shown to the witness, the proceeding looses its significance and importance. Therefore, much importance cannot be given to the Test Identification Parade where P.W.1 identified A1 after lapse of 3½ months. 11. It is not the case of the prosecution that there are some structured features of the first respondent/first accused which enabled P.W.1 to identify him at a later point of time. In the early hours of the day, for a short period, P.W.1 saw the assailants and therefore, it cannot be possible in such circumstances for a witness to identify the assailants after lapse of 3½ or 4 months unless there are some structured features of the first accused. There are no such structured features as depicted by P.W.1 at the time of lodging Ex.P1-complaint or when he was examined by the police during the course of investigation. Therefore, that is the reason why the trial Court has not placed any reliance on the evidence of P.W.1 with regard to his identification of A1 in the Test Identification Parade and acquitted the first accused. There are no substantial or compelling reasons so as to call for any interference by this Court. Hence, judgment under challenge is correct, legal and proper. 12. Accordingly, the criminal appeal is dismissed confirming the judgment, dated 17.11.2006, made in S.C.No.286 of 2006, on the file of the learned II Additional Assistant Sessions Judge (FTC), Nellore. _______________ (K.C. BHANU, J) Date: 21st August, 2009 KL