IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SECOND DAY OF JANUARY TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.233 OF 2010 Between: The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND A. Ganeshan and another ..... Accused/Respondents The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.233 OF 2010 JUDGMENT: The Criminal Appeal, under Section 378 (1) & (3) of the Code of Criminal Procedure, 1973, is directed by the State against the judgment, dated 30.07.2008, in Sessions Case No.401 of 2007, on the file of the learned Assistant Sessions Judge, Gudur, whereunder and whereby, the respondents/Accused Nos.1 & 3 were found not guilty of the offence punishable under Section 397 of the Indian Penal Code, 1860 (for short, “I.P.C.”), and accordingly acquitted. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: On the intervening night of 21/22.11.2007 at about 1.00 hours, a gang of nine members, aged between 18 to 21 years, planned to commit dacoity on the highway and out of them Accused Nos.1 and 2 boarded the lorry bearing No.AP 26TW 3349 which was driven by one Datla Subba Raju at Mallam junction, and when the lorry reached Vinamala cross road, Accused Nos.1 and 2 requested the driver to stop the vehicle for attending calls of nature and when he stopped the lorry, his cleaner and Accused No.2 alighted from the cabin and Accused No.1 threatened the driver on the point of knife to give him cash, and on that, the driver jumped from his seat and started running towards petrol bunk and meanwhile, on the signal given by Accused No.2, the other seven offenders, who were hiding by the road side, came out and surrendered the vehicle. Meanwhile, the driver who was running away fell on the road and Accused No.1 hacked with knife on his head and robbed cash of Rs.1,600/- and Accused No.3 attacked the cleaner and hacked him with the knife on his head and robbed cash of Rs.100/-. Meanwhile, the villagers, who were present at the center, rushed to the scene of occurrence to rescue the injured person and when one of them by name Rayapu Srinivasulu caught hold of Accused No.4, Accused No.4 attacked him with knife and hacked him on his right shoulder. Thereafter, all the accused disappeared. Basing on the report given by the driver, the Sub- Inspector of Police, Naidupet Police Station, registered a case in Crime No.183 of 2006 for the offence under Section 397 I.P.C. During the course of investigation, Accused Nos.4 to 9 were arrested on 22.11.2006 at about 6.00 p.m. and one iron knife was seized from the possession of Accused No.4 after recording his confessional statement and thereafter they were sent to judicial remand. Accused Nos.2, 3 and 9 were arrested at 21.30 hours near railway gate, Kotapoluru and an amount of Rs.100/- and an iron knife was seized from Accused No.3. Accused No.1 was arrested on 07.12.2006 at 4.30 a.m. at Mallam Road junction and two cell phones were seized from his possession. Thereafter, Test Identification Parade was conducted by the Magistrate of Venkatagiri on 13.03.2007. On receiving the injury certificate of the injured, the police filed the charge sheet under Section 397 I.P.C. 3. The committal Court split up the case against Accused No.5. Before hearing the prosecution as well as the defence, the trial Court found that Accused Nos.2, 4 and 6 to 9 were juveniles and therefore, the case against them was split up and it was transmitted to the Juvenile Board, Nellore. The case is concerned against Accused Nos.1 and 3. 4. When the charges for the offence punishable under Section 397 I.P.C. was framed, read over and explained to Accused Nos.1 and 3 in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charge levelled against Accused Nos.1 and 3, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P6 besides case properties M.Os.1 to 3. 6. After closure of the prosecution evidence, Accused Nos.1 and 3 were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against them in the evidence of prosecution witnesses. They denied the same. On behalf of Accused Nos.1 and 3, no evidence either oral or documentary was adduced. 7. The trial Court, after appreciation of evidence on record, came to the conclusion that the identity of Accused Nos.1 and 3 as participants in committing the crime, has not been established and accordingly acquitted them. Challenging the same, the present Criminal Appeal is filed by the State. 8. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against Accused Nos.1 and 3 of the charge under Section 397 I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 9. Heard the learned counsel representing the learned Public Prosecutor. 10. There cannot be any dispute that in dealing with the Criminal Appeal 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 contrary is proved by the prosecution beyond all reasonable doubt and 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. 11. P.Ws.1 and 7 who are the driver and cleaner of the lorry bearing No.AP 26TW 3349 did not identify either Accused No.1 or Accused No.3 as the culprits who participated in the commission of offence though they stated about committing of dacoity by unknown assailants. P.W.1 identified M.Os.1 and 2 as the knives allegedly used in the commission of offence. Similarly, P.Ws.4 and 5, who are the villagers, who went to the scene of occurrence to rescue the driver and cleaner, also failed to identify the accused. 12. P.W.6, who was the Mediator present at the time of arrest of Accused No.3, is the only person who identified Accused No.3 and at his instance, two knives were seized from his possession. Even if the evidence of P.W.6 is to be accepted, at best, his evidence would go to show that the police arrested the accused on 22.11.2006 and seized Rs.100/- and iron knife. Mere recovery of Rs.100/- and a knife said to have been used in the commission of offence, by itself, cannot lead to an irresistible conclusion that the offence of dacoity has been committed by Accused Nos.1 and 3 along with others. It is one incriminating circumstance against Accused Nos.1 and 3 that they might have participated in the commission of offence. That circumstance alone is not sufficient to prove the guilt of accused. In view of the fact that the eye witnesses, who were said to be present at the time of committing dacoity, did not identify any one of the accused, the trial Court rightly acquitted the Accused Nos.1 and 3. 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. 13. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 30.07.2008, in Sessions Case No.401 of 2007, on the file of the learned Assistant Sessions Judge, Gudur. _______________ (K.C. BHANU, J) Date: 22nd January, 2010 KL