IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1433 of 2005 Between: The SI, RPF, Marripalem rep. by the Public Prosecutor, High Court Of A.P., Hyderabad .. Appellant AND Kalluri Srinivasa Rao and another .. Respondents/ Accused Appeal against the judgment in C.C. No.36 of 2002 on the file of the VI Metropolitan Magistrate for Railways, Waltair, dated 17-01-2005 praying to set aside the order of acquittal and to convict the accused for the offence with which they were charged. The appeal coming on for hearing, upon perusing the grounds filed in support thereof and upon hearing the arguments of the Public Prosecutor for the appellant and of Sri B. Devanand, Advocate for the respondents, the Court made the following: JUDGMENT: Aggrieved by the acquittal of the accused in C.C. No.36 of 2002 on the file of the VI Metropolitan Magistrate for Railways, Waltair by the judgment, dated 17-01-2005, the State is pursuing this appeal through the learned Public Prosecutor in respect of an alleged offence punishable under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966. The factual matrix is that officials of the Railway Protection Force at Visakhapatnam claimed to have received information about railway electrical equipments being taken away from the railway electrical stores of the Section Engineer, Diesel Locoshed, Marripalem through railway staff and as a result of a secret watch conducted between the railway goods shed and G Cabin area, the 1st accused was noticed taking away parts of a ceiling fan belonging to the railways on his bicycle carrier. On interrogation, he stated that the 2nd accused gave him the fan for Rs.50/- and hence, the unlawful possession was recorded under a seizure list. While the 1st accused was arrested and sent to judicial custody, the 2nd accused obtained anticipatory bail. After the case was taken on file and the accused appeared, copies of documents were furnished to them and the prosecution examined P.W.1 in chief before the Court framed a charge under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966, which was denied by the accused. During trial, P.W.1 was recalled and examined and P.Ws.2 to 6 were examined and Exs.P.1 to P.12 and M.Os.1 to 3 were marked. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure and they did not produce any defence evidence. The trial Court rendered the impugned judgment referring to the oral and documentary evidence produced during trial and found that for proving the alleged offence, unlawful possession of railway property has to be proved. Though the accused did not deny the ownership of M.Os.1 and 2 being with the railways, the defence was that the 1st accused and the 2nd accused, who are employees of the railways, were entrusted with the components of the fan for fixing the same at another point and denied the 2nd accused entrusting the fan to the 1st accused for being taken away to his house. The trial Court also found that P.W.1, the enquiry officer, admitted the place of seizure to be on the way to the place where the fan had to be fixed. The 1st accused was observed to be the sub-staff of P.W.2, P.W.5 and the 2nd accused and the hostility of P.W.2, the Section Engineer was strongly relied on by the trial Court, more particularly his admission that M.Os.1 and 2 were not seized in his presence. The evidence of P.W.3, the other seizure witness, was noted to be not disclosing whether he knew the contents of the documents said to have been drafted in his presence on which his signatures were obtained. His admission that he signed on the mediators report at the request of the Railway Protection Force, was taken as showing clearly that the seizure did not take place in the presence of P.W.3. P.W.5’s evidence was observed to be disclosing that the fan was obtained from the Stores Incharge, the 2nd accused, and was entrusted to the 1st accused for fixing the same in the common point. It was also noted that P.W.5 reached the common point by his motor bike while the 1st accused was on his way on his cycle. These circumstances were considered by the trial Court as showing the failure of the prosecution to prove its case against the accused and consequently, both the accused were acquitted. The grievance of the appellant is that the direction in which the 1st accused was going with M.Os.1 to 3 towards his railway quarter should have led to an inference of his mala fide intention and his confession recorded by P.W.1, which is admissible in law, ought to have been relied on as proving his guilt instead of relying on minor discrepancies. Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor for the appellant and Sri B. Devanand, learned counsel for the accused/respondents are heard. The point for consideration is whether the prosecution has proved beyond reasonable doubt the guilt of either accused for the offence punishable under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 ? Point: P.W.1, the Sub-Inspector of Railway Protection Force, who conducted the secret watch and caught the 1st accused carrying the ceiling fan components of the railways on his cycle, referred to the alleged confession under Ex.P.1 and he claimed that there was no entry in the rough register Ex.P.5 about transmitting M.Os.1 and 2. But he admitted recording the statement of P.W.5 about entrusting the fan to the 1st accused for fixing for purposes of the railways, which is diametrically opposite to the alleged confessions said to have been made by the 1st accused. P.W.1, who claims to have recorded the confessional statement of the 2nd accused also, claims the same to be after release of the 2nd accused on anticipatory bail and the claim is, ex facie, unnatural when the 2nd accused obtained anticipatory bail claiming innocence. While P.W.1 admitted the absence of any written report concerning the culpability of accused 1 and 2, he also admitted that the premises where the 1st accused was apprehended was very much within the premises of the railways. Both the accused were admitted to be on duty at the relevant time and P.W.2, as noted by the trial Court, is the key witness and is the boss of both the accused as the Section Engineer. Though he tried to attribute culpable statements to the 1st accused and though he admitted his signatures on Exs.P.1 and P.2, he turned hostile to the prosecution and stated that the records clearly disclose the details of installation, replacement, etc., of the fan and his admission that the seizure of M.Os.1 and 2 did not take place in his presence, destroys the credibility of Exs.P.1 and P.2. P.W.3 also was similarly made to put his signatures on Exs.P.1 and P.2 obviously without the contents of the same being explained to him and he also himself did not notice the 1st accused taking away M.Os.1 and 2 to his house. P.W.4, the Inspector of Railway Protection Force, lends natural support to P.W.1. But he also had to admit the place of seizure to be within the railway premises and he also claimed that P.W.2 had knowledge of M.Os.1 and 2 being handed over to the 1st accused by the 2nd accused, which may further probablise that the said entrustment was for the purposes of the work of the railways only and not to take away the fan to the house of the 1st accused. The evidence of P.W.5 that he issued the fan to the 1st accused for fixing the same in common point and that he went to the common point by his motor bike while the 1st accused was coming by his cycle, further strengthens the conclusion and it was also evident that the 1st accused could not perform his duty due to being apprehended on the way by Railway Protection Force. P.W.5 was positive that the 1st accused known to him since long never had a complaint against him on the departmental side. Thus, the evidence on record before the trial Court does not, in any manner, indicate the possibility of proving the alleged offence against either accused beyond reasonable doubt and the contradictions on which the trial Court relied on cannot be considered trivial or insignificant. The question whether confession of P.W.1 is admissible or inadmissible pales into insignificance in the light of the positive circumstances elicited above and the alleged direction in which the 1st accused was going indicating his guilt will be a matter of surmise and not of proof. Suspicion cannot replace the requirement of proof beyond reasonable doubt and therefore, the impugned judgment cannot be interfered with. In the result, the appeal is dismissed. ____________________ G. BHAVANI PRASAD, J Date: 02-12-2009 Svv