IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.: 1166 of 2009 Between: The State of A.P. .... APPELLANT AND Dasari John Paul ....RESPONDENT Counsel for the Appellant : Counsel for the Respondent : . The Court made the following: HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.1166 OF 2009 JUDGMENT: 1) The appeal filed by the State under Section 378 (3) & (1) of Cr.P.C., 1973 is directed against the Judgment, dated 06.03.2006, passed in S.C.No.50 of 1998 on the file of the Assistant Sessions Judge, Gudur, whereunder and whereby, the respondent/A-2 was found not guilty for the offences punishable under Sections 395 and 412 of IPC. 2) The brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: On the intervening night of 2/3.12.1989, ten unknown offenders armed with knives and sticks, entered into the palace of Raja Venkatagiri, in Venkatagiri village and gained entrance into the palace with a dishonest intention to commit theft of property, gagged the mouths of the de-facto complainant and one Balaraju with clothes, tied them and placed them separately. Later, all the offenders attempted to break open the shutter of the treasury, but in vain. On that, they broke open the shutter of the doors of western room and committed theft of one gold coated copper plate, one silver crown of Goddess Poleramma, two connected pieces of silver cobra with five heads and they also break open the eastern side room and committed theft of a small idol of Goddess Kalikamatha, one metal idol and metal sheets. They also break open another room and committed theft of one Rolleie-35 black colour camera, mouth piece and cash of Rs.700/- of PW-1 and thereby escaped with the booty. On a complaint made by the complainant, Venkatagiri police registered a case against the accused in Cr.No.142 of 1989, for the offence punishable under Section 395 I.P.C. During the course of investigation, on 30.01.1990 at about 10.15 p.m., near Venkatagiri Railway Station, A-1 was arrested along with two others, and the police recovered the camera from the possession of A-1. Basing on the confessional statement of A- 1, the police arrested A-2 to A-4 and recovered one paper packet containing one piece of silver cobra with five heads. 3) When the charges under Sections 395 & 412 I.P.C., were framed, read over and explained to them, they pleaded not guilty and claimed to be tried 4) To substantiate the charges, the prosecution examined PWs.1 to 4 and got marked Exs.P1 to P4, besides case property MO.1. On behalf of the defence, no witnesses were examined and no documents were marked. 5) Basing on the evidence available on record, the trial Court found respondent/A-2 not guilty for the offences punishable under Sections 395 and 412 of IPC., and thereby acquitted him. Challenging the same, the present criminal appeal is filed by the state. 6) Heard the learned counsel representing the learned Public Prosecutor and perused the Judgment under challenge. 7) Now the point for determination is whether the prosecution proved its case against the accused beyond all reasonable doubt of the offences with which he was charged. 8) It is a case of dacoity, committed by more than five persons by gaining entrance into the treasury room of Raja Venkatagiri, in Venkatagiri village, in the mid night of 2/3.12.1989. At the time of incident, when PW-1 was present at the house, MO-1-camera, belonging to him was committed theft. In his evidence, he categorically stated that he do not know the accused and he cannot identify the culprits. When respondent/A-2 was shown to the witnesses, they could not identify him as one of the persons, who participated in the commission of dacoity. 9) PW.2 is only a mediator for the scene of offence and his evidence shows that dacoity has taken place at the palace of Raja Venkatagiri in Venkatagiri village. During the course of investigation, a piece of silver cobra with five heads was seized from the possession of A-2 in the presence of mediators. 10) PW.3 is one of the mediators, who was present at the time of arrest of respondent/A-2 and seizure of the property from his possession. He failed to identify A-2 as one among the other accused persons and he did not know about the seizure of property from the possession of A-2. In spite of giving several opportunities, except producing MO-1_case property, the prosecution miserably failed to produce the remaining case property before the court below. Admittedly, MO-1-camera was not seized from the possession of respondent/A2. Therefore, there is absolutely no evidence placed on record to show that the respondent/A2 was in possession of the stolen property. Hence, the prosecution miserably failed to prove the guilt of respondent/A-2 beyond reasonable doubt. Hence, the court below rightly acquitted respondent/A-2. The said order of acquittal needs no interference. 11) The criminal appeal is, therefore, dismissed at the stage of admission, as devoid of merit. _______________ K.C. BHANU, J 18th August, 2009 MD/TJS