THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.148 of 2006 JUDGMENT: This Criminal Appeal is filed by the State against the judgment dated 29.12.2003 in C.C.No.7 of 2002 on the file of the VI Metropolitan Magistrate for Railways, Waltair, wherein Accused 2 to 6 were acquitted of the offence punishable under Section 3(a) RP (UP)Act. (Case against A1 is abated as he died during the pendency of the C.C.). 2. The case of the prosecution is that on 1.3.2001 during the course of conducting ambush watch between Simhachalam North and Pendurthi Railway Station at 15.40 hours by ASI, RPF., Marripalem along with two constables, A1 found carrying railway material in a polythene bag i.e. 3 brake blocks, 5 steel keys and the said material was seized under a seizure list. At the instance of A1, the raid party went to iron scrap shop of A2 in Sabbavaram where they found iron scrap and some iron material in a truck bearing No.AP 5 T 649 near Jodugula Junction and there were five persons in the cabin of the truck. A6 jumped out of the truck and escaped. They recovered 25 steel keys, 8 bearing plates, 3 railway wagon shakle pins, 2 rail cut pieces, 7 brake block, 3 tonnes of iron scarp (other than railway property), truck No. AP 5 T 640 and its R.C. book under second seizure list. They registered a case and on enquiry, it reveals that the accused are liable to be punished under Section 3 (a) RP (UP) Act. 3. During the course of the trial, prosecution examined PWs 1 to 8 and marked Exs.P.1 to P.14 besides marking MOs 1 to 10. However, no witnesses were examined and no documents were marked on behalf of defence. 4. The trial court after taking into consideration the evidence brought on record and the facts and circumstances of the case, found accused 2 to 6 not guilty of the offence punishable under Section 3 (a) RP (UP) Act and accordingly they were acquitted. Challenging the order of the acquittal, the present appeal is preferred by the State. 5. Heard the learned Public Prosecutor, the learned counsel for the respondents-accused and perused the record. 6. The evidence of PW.1 is that he along with two constables conducted raid on 1.3.2001 between Simhachalam North and Pendurthi, at 4.00 p.m. near K.M. 866/13A and they found A1 carrying railway material and they recovered MOs 1 to 3 under Ex.P.1-first seizure list. At the instance of A1, MOs 4 to 9 were recovered in front of the scrap shop of A2 and they detained A2 to A5, who are sitting in the lorry bearing No.AP5 T 649 and A6, who is also sitting in the said truck, ran away. Ex.P.3 is the 2nd seizure list under which they recovered M.Os 4 to 9. MO. 9 does not belong to Indian Railways. MO. 10 is the truck from which the material was recovered. To corroborate the evidence of PW.1 with regard to recovery of Railway property, PWs 2 and 3, official witnesses, were examined. PW.4 is the mediator who gave evidence about the recovery of the material in his presence and his attesting the seizure list-Ex.P.3. PWs 5 and 6 are mediators but they turned hostile. PWs 6 and 8 are the official witnesses. The case of the prosecution is that they recovered MOs 1 to 3 from A1, and at the instance of A1, MOs 4 to 9 were recovered, but MO.9 does not belong to Railways. MO.10 is the truck from which the material was recovered. 7. The charge sheet does not disclose the presence of accused at the time of alleged second recovery and the place of seizure. There is no specific accusation against each of the accused. According to PW.1, A2 to A5 were sitting in the lorry. Mere sitting in the cabin of lorry does not mean that they were handling or dealing with the material alleged to have been recovered from the truck. The evidence of PW 1 is not similar with that of PW.4 with regard to seizure of MOs. Further, PW.4 stated that he did not remember the number of items seized. 8. In the circumstances, this court is of the view that the trial court has not committed any error in acquitting accused 2 to 6 of the offence punishable under Section 3(a) RP (UP) Act. 9. Hence, the Criminal Appeal fails and the same is dismissed ______________ NALLA, J -07-2010 Stp