THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1803 OF 2009 JUDGMENT: 1. This Criminal Appeal, under Section 378(1) & (3) Cr.P.C., is preferred by the State against the judgment dated 29.01.2008 in C.C. No. 103 of 1993 on the file of the Special Judicial Magistrate of Frist Class for Railways, Nellore, whereunder and whereby the respondents/A.1 and A.2 were acquitted of the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short, ‘the Act, 1966’). 2. The brief facts that are necessary for disposal of this Criminal Appeal may be stated as follows: On 28.7.2003, the complainant, who is Inspector, Railway Protection Force, Ongole, received information that some railway properties were transported to the premises of A.1, who is working as Section Engineer, Permanent Way, Ongole under the guise of transporting the railway material to the Section Engineer, Permanent Way, Krishna Canal. Immediately, this information was exchanged by the complainant with Crime Intelligence Branch, Vijayawada and it was verified that the material did not reach Section Engineer, Permanent Way, Krishna Canal. On 29.9.2003, the complainant contacted A.1 over railway phone to verify the information. A.1 informed that on 28.7.2003 he sent 18 Nos. of MS Angulars and 5 Nos. AC sheets by railway lorry bearing No. AHJ 3624 through A.2 by a gate pass. When asked for the gate pass, a copy of the gate pass was sent to the complainant, which was in the hand-writing of A.1 and also containing signatures of A.1 and A.2. On the strength of the above information, on 29.7.2003, the complainant along with Inspector, Crime Intelligence Branch, Vijayawada accompanied by other staff visited the house of A.1 at Tadigadapa village to verify the correctness of the information. Adjacent to the house of A.1, there is another house belonging to one Ch. Pithaiah Sastry, who is brother-in-law of A.1. The said house was found locked. Father of A.1 P.V. Purna Kutumba Rao and brother of A.1 Yagna Narayana were present. On verification, they found 18 Nos. of MS angulars of different lengths and 5 Nos. of asbestos sheets in the portico of the house of brother-in-law of A.1. Father of A.1 stated that on 28.7.2003 at about 7.00 AM, when he woke up, he noticed the above said railway material in the portico of the house of his son-in-law. But, the house of said Pitchaiah Sastry, which is door No.1/63, was found closed and inmates are out of station. On the strength of above enquiries the complainant came to conclusion that MS angulars and asbestos sheets were fraudulently delivered by A.1 at his house situated Tadigadapa village, Krishna district, which amounts to stealing of railway property. Then, the Inspector seized the above said railway property in the presence of two mediators by drafting a panchanama a copy of the seizure list was served to the father of A.1. Then, the seized property was brought to Vijayawada railway station. After returning to Ongole, the complainant on 30.7.2003 registered a case in crime no.7 of 2003 for the offence punishable under Section 3(a) of the Act, 1966. During the course of investigation, the complainant arrested the accused, recorded their statements and the statements of witnesses, seized the incriminating material, and after completion of investigation, laid the charge sheet. 3. The trial Court framed charge under Section 3(a) of the Act, 1966 against the respondents, and when the charge was read over and explained to them in telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 19 and got marked Exs.P1 to P54, besides case properties M.Os. 1 and 2. On behalf of the accused, no oral or documentary evidence was adduced. 5. The trial Court, considering the evidence on record, found the respondents/A.1 and A.2 not guilty of the offence with which they were charged and accordingly acquitted them. Challenging the same, the present appeal is preferred by the State. 6. While dealing with the order of acquittal, no doubt, the appellate Court has got full power to re-appreciate the evidence, but, it will be slow in interfering with the same in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved and that presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons, normally this court would not interfere with the order of acquittal. 7. The learned counsel for the Public Prosecutor contended that the evidence of P.W.16 would clearly go to show that M.Os. 1 and 2 were used in railway department and they are serviceable, and that as one of the mediators turned hostile the trial court has not placed any reliance on the evidence of the investigating officer. Hence, she prays to set aside the order of acquittal and convict the accused. 8. On the other hand, the learned counsel for the respondents contended that there is absolutely no evidence to show that M.Os. 1 and 2 were exclusively used in railways and they are serviceable, and that unless it is established that the property seized from the possession of the accused are exclusively used in railways, the question of committing the offence under Section 3(a) of the Act, 1966, does not arise; that the trial court, upon consideration of the evidence on record in right perspective, rightly acquitted the accused and there are no grounds to interfere with the same. 9. M.O.1 is the MS angulars and M.O.2 is the asbestos sheets. Unless it is shown that the property seized from the possession of the accused is exclusively used in railways and they are not available in open market, the question of committing the offence for the offence punishable under Section 3(a) of the Act, 1966 by the accused, does not arise. P.W.16 is the J.E./P. Way, Ongole at the relevant point of time of the incident. Though he gave Ex.P20-certificate stating that MS angulars were used for fixing the cellars with girders in Railway Engineering Department, but he himself admitted that M.O.1 can be available in open market. Admittedly, M.O.1 does not contain any railway marks. Similarly, as far as M.O.2 is concerned, they are also available in open market. They do not contain any railway marks as the exclusive property used by railways. 10. Though evidence is available that these material objects were allegedly seized from the possession of A.1, the trial court has not placed any reliance on the evidence of investigating officer because the mediator for the seizure of M.Os. 1 and 2 turned hostile. In those circumstances, the trial court ought to have appreciated the evidence of the investigating officer like that of any other witness. But, in any view of the matter, the complainant failed to establish that M.Os. 1 and 2 are exclusively used in railways and so the accused cannot be convicted. Therefore, there are no compelling or substantial reasons to interfere with the impugned judgment. 11. The Criminal Appeal is devoid of merit and is, accordingly, dismissed. ------------------- (K.C.Bhanu, J.) 22.12.2009 Drk THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1803 OF 2009 Date: 22.12.2009 Between: State, rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Appellant And P.Ramakrishna & another …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1803 OF 2009 22.12.2009