IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1381 OF 2009 Between: The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND Dandempally Yadagiri & another ..... Respondents/Accused The Court made the following: JUDGMENT: The Criminal Appeal, under Sections 378 (3) & (1) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed by the State against the judgment, dated 27.07.2007, in C.C.No.385 of 2006, on the file of the learned Judicial Magistrate of I Class, Nakrekal, whereunder and whereby the respondents/Accused Nos.1 & 2 were found not guilty of the offence punishable under Section 379 I.P.C. 2. Brief facts that are necessary for disposal of the present Criminal Appeal may be stated as follows: P.Ws.1 and 2, who are father and son, own agricultural land at the outskirts of Mallaram Village. They purchased 1.5 HP CRI current motor and fixed the same near their agricultural well at the outskirts of Mallaram Village. Seven days prior to lodging of Ex.P1-complaint, some unknown offenders committed theft of M.O.1-current motor, which was fixed to the agricultural well of P.Ws.1 and 2. P.Ws.1 and 2 searched for the current motor which was missing and they ultimately found the current motor fixed to the agricultural well of the accused and the accused were using the same. Then Ex.P1 was lodged. The Sub-Inspector of Police seized the current motor from the possession of the accused and after completion of investigation, he filed the charge sheet. 3. When a charge for the offence punishable under Section 379 I.P.C. was framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 7 and got marked Exs.P1 to P5, besides material object M.O.1. 5. After closure of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the 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 and the Investigating Officer, as there are discrepancies in their evidence, and acquitted the accused for the charge levelled against them. Challenging the same, this 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 accused of the charge punishable under Section 379 I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 8. Counsel representing the learned Public Prosecutor contended that the evidence of P.Ws.1 and 2 is very clear that M.O.1 was committed theft by the accused; that M.O.1 was seized from the possession of the accused; and therefore, the presumption under Section 114 (a) of the Indian Evidence Act can be drawn, and if that presumption is drawn, the accused are either thieves or receivers of the stolen property. Hence, she prays to set aside the order of acquittal. 9. On the other hand, the learned counsel appearing for the respondents contended that there is no evidence to show that the accused committed theft of M.O.1 from the agricultural well of P.Ws.1 and 2; that the mediator, who was present at the time of seizure of M.O.1, did not support the case of the prosecution; that the evidence of P.W.7-Investigating Officer cannot be relied upon because his evidence is self-contradictory in nature with regard to the actual place of seizure, and therefore, he prays to dismiss the Criminal Appeal. 10. There cannot be any dispute that in dealing with the Criminal Appeals against the order of acquittal, the Appellate Court has got full power to reappreciate the evidence available on record, but it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless the contrary is proved by the prosecution beyond all reasonable doubt and that presumption of innocence is further strengthened by an order of acquittal. Unless the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 11. Section 379 I.P.C. prescribes punishment for the offence of theft. The necessary ingredients to constitute the offence of theft as defined under Section 378 I.P.C. are as follows: (a) A person moves any movable property; (b) Such person intends to take the property dishonestly; (c) The property is moved out of the possession of any person; (d) The moving is in order to such taking as is mentioned in (b) above; (e) The person out of whose possession, property is moved has not consented. 12. In the first instance, P.W.1 himself stated that M.O.1, belonging to him, was purchased under a valid receipt. Except his oral evidence, there is no other evidence to show that he is the owner of M.O.1. Further, the allegation is that one week prior to lodging of Ex.P1-complaint, some unknown offenders committed theft of M.O.1 from the agricultural well of P.W.1. On search and verification by P.Ws.1 and 2, they found that M.O.1 was fixed to the agricultural well of the accused and they were using it. Therefore, by the time of Ex.P1-complaint, P.Ws.1 and 2 very well knew about the fact that M.O.1 was fixed to the agricultural well of the accused. But that aspect has not been specifically mentioned in the First Information Report. 13. With regard to seizure of M.O.1, if the contention of the learned Public Prosecutor about the recovery of M.O.1 at the instance of the accused is to be accepted, then certainly, the accused were having knowledge as to the place where the motor was kept. Unless the accused were having knowledge of concealment of motor, the presumption under Section 114 (a) of the Indian Evidence Act, 1872, cannot be drawn. Therefore, the prosecution has to establish that the current motor, which was allegedly committed theft, must have been seized from the possession or constructive possession of the accused. P.W.4-Mediator, who was present at the time of seizure of M.O.1 at the instance of accused, did not support the case of the prosecution. So, the only evidence which remains on record is the evidence of the Investigating Officer. Simply because he is a Police Officer, it does not mean that his evidence has to be rejected on that ground. Upon appreciation of the evidence of P.W.7, if his evidence is found to be true and trustworthy, there is no legal bar to base conviction upon the evidence of P.W.7. The evidence of P.W.7 would go to show that he stated that he found M.O.1 concealed under the dried Palmyra tree leaves in an old room belonging to the accused, but not from the agricultural well of the accused. Therefore, there is a discrepancy in the evidence of P.W.7 with regard to the recitals in Ex.P5-Seizure Panchanama Observation Report. When it is the specific case of P.W.1 that the police seized M.O.1 from the agricultural well of the accused, but the evidence of P.W.7 is contra. Therefore, the recovery of M.O.1 from the exclusive possession or constructive possession of the accused has not been established beyond all reasonable doubt. So, the trial Court has not placed any implicit reliance on the evidence of P.W.7 and rightly acquitted the accused. There are no grounds to interfere with the same. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 14. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 27.07.2007, in C.C.No.385 of 2006, on the file of the learned Judicial Magistrate of I Class, Nakrekal. ______________ (K.C. BHANU, J) Date: 3rd November, 2009 KL