IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CRIMINAL APPEAL No.933 OF 2005 Between: The A.S.I., R.P.F. Out post, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …. Appellant And Adari Ramakrishna S/o. Simhachalam And Others. …. Respondents THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CRIMINAL APPEAL No.933 OF 2005 JUDGMENT: This Criminal Appeal is filed by the appellant herein against the Judgment dated 30-09-2002 in C.C. No.157 of 1999, on the file of the learned VI Metropolitan Magistrate for Railways, Visakhapatnam, wherein the respondents herein i.e. A1 to A4 were found not guilty of the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short ‘the Act’) and were acquitted thereof. 2. Heard the learned Public Prosecutor for the appellant - State. None appears for the respondents. Perused the records. 3. PW.1 P. Jaya Raju, A.S.I. of RPF Out Post, S. Kota filed the complaint against the respondents – A1 to A4. 4. The brief facts are as follows: On 07-03-1999 at 2-00 PM, PW-2 S. Vykunta Rao, J.E., Permanent Way, S. Kota, received information about cutting of rail pieces by 6 or 7 persons with gas cutters by the side of railway track near S. Kota and Malliveedu Sections and intimated the same to PW.1 and PW.1 along with PW.3 A. Eswar Rao and another rushed to the spot at about 2-45 PM and noticed 6 or 7 persons loading the railway clusters MO1 into a Mini Van MO2 bearing No.AP-31-T-3289 and on seeing them, the said persons fled away and PW.1 detained A1 to A3 and the remaining four persons ran away and out of them, one was identified as A4 and in the meanwhile PW2 and others came to the spot. PW.1 seized the rail pieces MO1, Van MO2, HP gas cylinder MO3, Oxygen cylinder MO4, gas cutter MO5, RC book MO6 and goods carriage permit MO7 under panchanama Ex.P-1. A1 to A3 were arrested and brought to the Police Station along with the seized property. A case in Crime No.4 of 1999 was registered. PW.2 issued the report of theft on 06-04-1999. A4 surrendered before the Court. After completion of investigation, PW.1 filed a complaint against A1 to A4. The respondents/A1 to A4 appeared before the Court and denied the offence and pleaded not guilty. 5. In support of their case, the prosecution examined PW.1 to 5 and got marked Exs.P-1 to P-17 and MOs.1 to 7. 6. On consideration of the material available on record, the learned Magistrate found the respondents - A1 to A4 not guilty of the offence punishable under Section 3(a) of the Act and acquitted them. Aggrieved by the same, the present appeal is filed by the prosecution. 7. The learned Magistrate found that the evidence of material witnesses PWs.1 to 3 was discrepant even on material aspects and the alleged seizure of MO1 rail pieces from the possession of A1 to A4 was not proved. 8. On a re-appraisal of the evidence available on record, it is found that the testimony of PWs.1 and 2 is mutually discrepant even with regard to the receipt of information pertaining to the alleged incident. Even according to the prosecution, by the time PW.1 and his staff reached the spot, three other persons were found to be loading the rail pieces MO1 into the Van MO2 and on seeing them, those persons ran away and they were not apprehended even subsequently. Though, A1 to A3 were said to have been detained on the spot, there is no evidence to connect A1 to A3 with the rail pieces MO1 that were found in the Van MO2. 9. It is not the case of the prosecution that MO1 was in possession of A1 to A3 or that they were seized from the possession of A1 to A3 or at their instance. Admittedly, even according to the prosecution, the rail pieces MO1 were found in the Van MO2. In the absence of any evidence to show that A1 to A3 had anything to do with the said Van, which was found to be containing MO1 rail pieces, it cannot be held that MO1 was recovered from the possession of A1 to A3. A1 is stated to be the driver of the Van. PW.5 B. Mutyalamma, the owner of the Van, no doubt deposed that A1 is the driver, but it is not her evidence that on that day A1 had taken the van on her instructions. Even assuming that A1 was the driver of the Van MO2, still in the absence of any evidence to show that A1 to A4 had loaded the rail pieces MO1 into the Van MO2 after removing them from the track with the help of gas cutter and the rail pieces MO1 not having been shown to be in possession of A1 to A4 at the time of alleged seizure, no criminal liability can be fastened on A1 to A4. Under those circumstances, the finding of the learned Magistrate that the prosecution failed to establish the seizure of rail pieces MO1 from possession of A1 to A4 does not call for any interference by this Court. When once the prosecution has failed to show that rail pieces MO1 were in possession of A1 to A4 and that MO1 was recovered from the possession of A1 to A4, the respondents, A1 to A4 herein, cannot be held liable for the alleged offence punishable under Section 3 (a) of the Act. Therefore, the order of acquittal passed by the learned VI Metropolitan Magistrate for Railways, Visakhapatnam is held not liable to be set aside. 10. The Criminal Appeal is, accordingly, dismissed. ___________________ G.V. SEETHAPATHY, J AUGUST 28, 2009. KTL