THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.577 OF 2004 DATED 1st DECEMBER, 2010. BETWEEN : The R.P.F., Tenali .. Appellant-Prosecution and Y.Chakrapani & another ..Respondents-accused THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.577 OF 2004 JUDGMENT: After obtaining necessary leave, State filed the present Criminal Appeal under Section 378 (4) (5) & (1) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) challenging the judgment, dated 01.08.2002, passed by the VII Additional District and Sessions Judge, Krishna at Vijayawada, in Criminal Appeal No.94 of 1997. The Inspector, RPF, Tenali, filed complaint against respondents- accused alleging that on 14.05.1993 the ASIPF, RPF Post Tenali, while causing enquiries into the thefts of Signal Relay coils, received information that A.1 disposed of three railway wooden sleepers to A.2. As such, he along with his staff went to Pedavadlapudi Railway Station and in the presence of on duty ASM, enquired A.1, who revealed that on 12.05.1993 he committed theft of three railway wooden sleepers from Pedavadlapudi Railway Station and disposed of the same to A.2 at Rs.200/- per sleeper. So revealing A.1 volunteered to show A.2 and his house. Then, the ASIPF recorded the statement of A.1 in presence of the on duty ASM, prepared the panchanama and arrested A.1. On the same day as led and shown by A.1, the ASI and his party went to the house of A.2 situated in premises bearing D.No.1-15(1) 3rd street, north of sivalayam centre, Pedavadlapudi. A.2 was found present in the house, who was identified by A.1 and vice versa. On enquiry, A.2 admitted the version of A.1 and voluntarily produced the three wooden sleepers. The ASIPF, conducted a panchanama arrested A.2 and seized the three wooden sleepers in presence of mediators. Thus, case against A.1 and A.2 for an offence punishable under Section 3 (a) of R.P. (UP) Act, 1966, (for short ‘the Act’). Respondents-accused were prosecuted in C.C.No.210 of 1993 by the learned VII Metropolitan Magistrate for Railways, Vijayawada, wherein the learned Magistrate after perusing the oral and documentary evidence led during the trial found the accused to be guilt, convicted them under Section 248 (2) Cr.P.C. and sentenced them to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for six months each. Challenging the same, accused filed Criminal Appeal No.94 of 1997. The learned Sessions Judge allowed the appeal setting aside the conviction and sentence under Section 3 (a) of R.P. (UP) Act, 1966 and acquitted the accused under Section 248 (1) Cr.P.C. Aggrieved by the same, State filed the present appeal after obtaining necessary leave from this Court. From the judgments of the Courts below, it is found that the learned Magistrate believed the confession of A.1 and seizure of the properties and thereby convicted the accused whereas the learned Sessions Judge recorded the order of acquittal on the ground that though A.1 was alleged to have confessed on 14.03.1993, but P.W.3, who recorded such confession, admitted in his cross examination that he signed on the confession only on 02.06.1993. The learned Sessions Judge also observed that such confession cannot be believed since the same is signed only on 02.06.1993, which is contrary to the case of the prosecution that confession is given on 14.03.1993. Under the Railway Act, confession is admissible, but, in the absence of any proof that the confession is voluntary and recorded in the manner known to law, the same cannot be accepted. Here, the discrepancy shown by the respondents-accused before the Appellate Court was appreciated by the learned Sessions Judge in a proper manner and he disbelieved the recovery of stolen properties. The learned Judge was also of the view that the prosecution failed to prove that the properties are exclusively available with the Railways. In the absence of any evidence to prove that the properties seized belong to Railways, the question of invoking Section 3 (a) of the Act does not arise. Hence, the learned Sessions Judge has rightly appreciated the evidence and acquitted the accused. As such, this Court is of the view that there is no need to interfere with the order of acquittal passed by the learned Sessions Judge. Therefore, the appeal shall fail Accordingly, the Criminal Appeal is dismissed. ________________________ JUSTICE RAJA ELANGO Dated : 01.12.2010 sur