THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.608 of 2004 DATE: 25TH JANUARY 2010 Between: The State of A.P. rep by The Public Prosecutor, High Court of A.P. And another. …Appellant / Petitioner AND R.Hayat And others …Respondents / Accused THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.608 of 2004 JUDGMENT: 1. This Criminal Appeal, under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973, (‘Cr.P.C.’, for brevity) is filed by the State against the judgment, dated 20.03.2003, made in S.C.No.315 of 1997 on the file of the Additional Sessions Judge, Ananthapur, whereunder and whereby, respondent / Accused No.5 was found not guilty of the offence punishable under Section 395 I.P.C. and accordingly, acquitted him. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows. Accused Nos.1 to 8 formed into a gang and were committing house dacoities threatening the inmates with deadly weapons during the night times in the states of Andhra Pradesh and Karnataka. P.W.1 and P.W.2 are wife and husband residing in a house in their garden behind Kotnur ‘B’ Mill in Manesamudram fields. On 12.02.1996 at about 03:00 A.M., while P.W.1 and P.W.2 were sleeping in the house in their garden after closing the doors, all the accused formed themselves into a gang with an intention to commit dacoity and being armed with knives and sticks, tresspassed the house of P.W.1 and threatened him to open the doors of the house. When P.W.1 refused to open the door, the accused gave blows with sticks on the door and tried to break open the door and out of fear, P.W.2 opened the door. Two of the accused stood at the door watching and the remaining six accused trespassed into the house and threatened P.Ws.1 and 2 and demanded gold and cash. Out of fear, P.W.2 handed over one pair of gold ear studs, one disco black beeds gold thali chain. Accused also snatched Rs.350/- from P.W.1. Thereafter, they tied the hands of P.Ws.1 and P.W.2 with shirt and towel and fled away from the house with the above said articles, by bolting the door from outside. On complaint of P.W.1, a case in Crime No.10 of 1996 under Section 395 I.P.C. was registered by the police and during the course of investigation, on 05.04.1996 at about 10.30 A.M., P.W.5 – Investigating Officer arrested A-1 to A-5 and seized one pair of gold ear studs from A-2 and disco black beeds chain from A-3 and one gold thali coin from A-5. Thereafter, in the Test Identification Parade, P.Ws.1 and P.W.2 identified their stolen property. However, A-6 to A-8 were absconding. After completion of the investigation, police filed charge-sheet against the accused for the offences punishable under Sections 395, 448 and 342 I.P.C. 3. When a charge under Section 395 I.P.C. was framed, readover and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 5 and got marked Exs.P.1 to P.6., besides case property M.Os.1 to 3 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no evidence. 6. The trial Court, after considering the evidence available on record, came to the conclusion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt and accordingly, acquitted all the accused. Challenging the same, State preferred this appeal. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the offence punishable under Sections 395 I.P.C., and whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.5 is very clear that all the three articles were seized from the possession of A-5 and the seizure was effected within two months from the date of committing of dacoity and therefore, the case, though may not fall under Section 395 I.P.C., will fall under Section 400 and 412 I.P.C. and hence, she prays to set aside the order of acquittal. 9. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, though the Appellate Court has got full power to re-appreciate 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 contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., 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. 10. The taking place of dacoity is not in serious dispute. Some unknown assailants committed dacoity in the house of P.Ws.1 and 2 and snatched away the booty including M.O.3. The participation of A-5 in the offence along with other accused is not established because P.Ws.1 to 3 who were said to be eye-witnesses to the incident present at the time of commission of offence, did not identify any one of the accused. The Village Administrative Officer, who was present at the time of arrest of A-5 did not specifically state that M.O.3 was seized from the possession of A-5. He also did not state that the nature of gold ornaments were same with that of the seized articles. Particularly, the Village Administrative Officer did not specifically state that M.O.3 was recovered from the possession of A-5 at the time of arrest. Therefore, the only remaining evidence is the evidence of P.W.5, who is the Investigating Officer. He simply stated that he arrested the accused and recovered M.O.3 from his possession. He did not state anything about the statement disclosed by A-5 with regard to the concealment of M.O.3 or about the place where it was seized. Therefore, even if the evidence of P.W.5 is to be accepted as true and correct, it would not come within the scope and ambit of Section 27 of the Indian Evidence Act, 1872. The identification of M.O.3 is by P.W.1 who is husband of P.W.2. But, P.W.2 is the best person to identify M.O.3, as she was wearing the said ornament. P.W.1 states that P.W.2 was eliminated from participation in the Test Identification Parade conducted by P.W.4. The precaution of mixing M.O.3 with other similar objects was not done by the Village Administrative Officer while conducting the Test Identification Parade, so as to enable the witness to identify the property, which belongs to him correctly. Therefore, none of the findings is shown to be true, correct, and not contrary to law. The trial Court, after elaborate consideration of the evidence on record, rightly acquitted all the accused. The said order of acquittal does not suffer from any infirmities so as to call for interference by this Court. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 11. Accordingly, the Criminal Appeal is dismissed confirming the judgment dated 20.03.2003 made in S.C.No.315 of 1997 on the file of the Additional Sessions Judge, Ananthapur. __________________​_ JUSTICE K.C.BHANU January 25, 2010 Bvv