IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.625 of 2009 Between: The State of A.P. .. Appellant AND Patan Naushad Khan & 3 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.625 of 2009 JUDGMENT: The criminal appeal is directed against the acquittal of the accused in S.C.No.191 of 2006, on the file of the VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada, by the judgment, dated 06.12.2006. 2. The Inspector of Police, G.R.P. Vijayawada, ﬁled the charge sheet in Crime Nos.62 to 64 of 2006 of G.R.P.S., Vijayawada, alleging that o n e Bhairav Singh and Jitendra Rao travelled in Ganga-Kaveri Express on 21.01.2006 when some unknown persons travelling with them oﬀered biscuits to them, on eating which they became unconscious. Cash of Rs.7,500/-, a Citizen wrist watch, a suit case containing 12 ‘T’ shirts, 6 pant pieces, 7 shirt pieces and one kids frock of Bhairav Singh, a Motorola cell phone with charger, clothes and cash of Rs.800/- of Jitendra Rao were committed theft of by the unknown persons. Bhairav Singh and Jitendra Rao were found to be unconscious at Balarsha Railway Station and were sent to Rural Hospital, Ballarpur for treatment. On 23.01.2006, they recovered consciousness and on their statements to Head Constable, G.R.P. Wardha, Crime No.A.00/06 was registered, which was re- registered at Vijayawada as Crime No.62 of 2006. 3. Similarly, Ramesh Chandra Solanki was travelling by Tamilnadu Express on 20.01.2006 and an unknown person travelling by the same coach oﬀered two biscuits to him, on eating which he became unconscious. Then the unknown person committed theft of cash of Rs.25,000/-, a gold chain with ‘Trishool’ locket, two gold rings and a Nokia mobile phone. When Ramesh Chandra Solanki was found in an unconscious state, the Sub-Inspector, G.R.P., Chennai Central, sent him to the Government General Hospital, Chennai, for treatment. After Ramesh Chandra Solanki recovered consciousness, Crime No.107 of 2006 was registered at Chennai Central R.P.S and was transferred to Vijayawada as Crime No.63 of 2006. 4. Booragadda Subbarao Naidu was travelling by Ganga-Kaveri Express on 24.01.2006 and an unknown person oﬀered a cream biscuit to him in the compartment. After eating the same, Subbarao Naidu became unconscious and the unknown person committed theft of a Sonata wrist watch, Cheppals and a tiffin box. When Subbarao Naidu was found unconscious at Wardha, he was sent to General Hospital, Chandrapur, for treatment. After he regained consciousness, Crime No.00/06 was registered at Wardha and on transfer to Vijayawada, it was registered as Crime No.64 of 2006. 5. The Station House Oﬃcer, Guntakal Railway Police Station, arrested accused 1 to 4 on 21.04.2006 on Platform No.5 of Guntakal Railway Station in the presence of G.P.Viswanadha Reddy, M. Srinivasulu and G. Giri, Mediators in Crime No.1 of 2004 of Guntakal G.R.P. Station. The confession statements of accused 1 to 4 were recorded before the Mediators and properties were recovered from the possession of all the accused before the mediators. The fact of arrest was informed to the Railway Police, Vijayawada and the accused were sent to the Railway Magistrate for judicial custody. After further investigation and conducting identiﬁcation parades for the property, the charge sheet was filed. 6. The II Metropolitan Magistrate for Railways, Vijayawada, took cognizance of the oﬀences in P.R.C. No.14 of 2006 and furnished copies of the documents to the accused on their appearance. On committal to the Court of Session, the case was made over to the trial Court which framed charges under Sections 328 and 379 read with Section 34 of the Indian Penal Code, 1860 (for short, “IPC”). The accused pleaded not guilty to the charges and during trial, P.Ws.1 to 8 were examined and Exs.P-1 to P-14 and M.Os. 1 and 2 were marked. 7. The trial Court rendered the impugned judgment ﬁrstly noting that there was no test identiﬁcation parade of the accused conducted by the prosecution before the ﬁnal report. The identiﬁcation was only before the Court and that too of the second and third accused only. The trial Court had also noted that the accused were unknown to the victims and the very conduct of the victims in accepting the oﬀer by the alleged culprits to have the tablets was considered unnatural by the trial Court. The trial Court also found that the persons, who were claimed to be present during the test identiﬁcation parades of the properties during which the victims were claimed to have identiﬁed the properties, were those working in the railway stalls and the Inspector of Police, who claimed to have seized the properties, was noted to have claimed to have received the crime numbers of diﬀerent Railway Police Stations even by the time of the seizure of the properties. The trial Court noted the absence of any evidence to show that copies of the registered crime reports from the other Railway Police Stations were received by the Inspector of Police who conducted the seizure and the evidence of the Mediator for the seizure as P.W.3 was not accepted as he is the Village Secretary at Guntakal and not a resident of the place where the properties were seized from the house of the third accused. The trial Court was also of the opinion that absence of independent and respectable inhabitants of the locality as mediators vitiates the acceptability of the prosecution version and the Court felt that the evidence adduced by the prosecution did not inspire any conﬁdence and the identiﬁcation of the accused only in Court also is unacceptable. Therefore, the trial Court had acquitted the accused of the offences with which they were charged. 8. The State preferred the present appeal through the learned Public Prosecutor contending that the ingredients to constitute the oﬀences were made out from the evidence of the prosecution and the evidence of the victims who identiﬁed the accused and the properties could not have been disbelieved. As the oﬀences were proved beyond reasonable doubt, the appellant desires the acquittal to be reversed. 9. Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor/the appellant and Sri D. Ravi Kumar, learned counsel representing Sri V.R. Reddy Kovvuri, learned counsel for the second respondent are heard. The other respondents did not appear before this Court. 10. The point for consideration is whether there are any convincing grounds for interference with the judgment of acquittal of the accused. 11. P.W.1, who attempted to claim the identity of the second and third accused in his evidence as the persons who gave the biscuits to him in the train and who committed theft, had to admit that he saw the accused only at the time of the commission of the oﬀence and again before the Court. Similarly, P.W.2, who claimed about the second accused giving him biscuits and committing theft in the railway compartment, had to admit that he never saw the accused after the commission of the oﬀence till the date of evidence. The possibility of P.Ws.1 and 2 identifying the accused 2 and 3 only due to their being in the place meant for the accused in the open Court cannot be ruled out in the absence of conduct of any test identiﬁcation parade by the Investigating Agency before ﬁling the charge sheet in spite of the victims and the accused being totally unacquainted before the incidents which provides a strong suspicious circumstance against the acceptability of the prosecution story at its face value. P.W.3, who claimed to have acted as a mediator at the time of arrest and seizure at Guntakal might be a bit reliable when he claims to have acted as such mediator at his place/Guntakal, but his claim of coming all along with the police and the accused to Tirupati to be a witness for the seizure of the articles does not seem natural. P.W.3 admitted that he was not given any requisition to act as a mediator in his personal capacity or capacity of Village Secretary and he was not even able to give the description of the articles which were said to have been recovered. He could not even say what were the items recovered at Guntakal and at Tirupati respectively and he admittedly did not claim any permission from his higher authorities to participate in the proceedings by leaving even the head quarters. He also admittedly has no documentary evidence to show his travel to Tirupati on the date of the alleged seizure. P.W.4 was a witness only for the identiﬁcation of the property and there was no other independent witness examined by the prosecution to corroborate the claims of P.W.3 about the arrest of the accused and seizure of properties from their custody or possession. The trial Court had elaborately speciﬁed the various unnaturalties in the oral and documentary evidence produced by the prosecution and the most glaring of the same is artiﬁcial mention of the details of the crime numbers of diﬀerent Railway Police Stations in the proceedings and the claim of the Oﬃcer who conducted the seizure about being in possession of all the detailed information about those diﬀerent crimes from diﬀerent Railway Police Stations by the time of the arrest and seizure. The accused are seen from their description to be belonging to Uttar Pradesh and Bihar and obviously could not have conversed with P.W.2 in his mother tongue Telugu. Apart from P.W.3, the other two mediators for the arrest of the accused and seizure of the properties were given up without assigning any reason and the trial Court had the beneﬁt of observing the demeanour of the witnesses and to disagree with its conclusion that the evidence did not inspire conﬁdence, very strong and convincing grounds should be available on record. As noted by the trial Court, no reason was assigned why any test identiﬁcation parade for the accused was not conducted and the absence of any independent evidence to corroborate the claims of the prosecution except that of P.W.3 makes its version susceptible to creating a reasonable doubt about absolute proof of the allegations made against the accused. Even the evidence of P.W.3 being what it is, the conclusions of the trial Court about the accused being not found guilty cannot be interfered with in this appeal. 12. In the result, the Criminal Appeal has to fail and is, accordingly, dismissed. ___________________ G. BHAVANI PRASAD, J Date: 18th November, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.625 of 2009 Date: 18th November, 2011 KL