Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh vs Yandava Thammayya on 10 September, 2025
1
APHC010478252010
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
WEDNESDAY, THE TENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL APPEAL NO: 65/2010
Between:
1. THE STATE OF ANDHRA PRADESH, REP. BY THE PUBLIC
PROSECUTOR, HIGH COURT OF ANDHRA PRADESH,
HYDERABAD.
...APELLANT
AND
1. YANDAVA THAMMAYYA, S/O. PENTAYYA R/O. POLIMITIVALASA,
THE LEFT SIDE OF SANTHAKAVITI ROAD, SRIKAKULAM DISTRICT.
2. THUMMALAGUNTI CHANDRA SEKHAR, S/O. MANGA RAJU R/O.
RAJAM, SRIKAKULAM DISTRICT.
...RESPODENT(S):
Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High
Court may be pleased to to present this Memorandum of Criminal Appeal
against the order of acquittal of accused / respondent in C.C. No. 753 of 2006
on the file of the Hon'ble II Metropolitan Magistrate for Railways, Waltair, dated 27th day of March 2008 and prays that this Hon'ble Court may be pleased to set aside the order of acquittal acquittal and convict the accused /(Respondents) for the offences with which he was charged.
IA NO: 1 OF 2009(CRLAMP 2213 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of "265" days in presenting the appeal against the order of 2 acquittal of the accused / respondent in C.C. No. 753 / 2006 on the file of the Hon'ble II Metropolitan Magistrate for Railways, Waltair.
IA NO: 1 OF 2010(CRLAMP 227 OF 2010 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant special leave under section 378 (4) of Cr.P.C., 1973 to present an appeal against the order of acquittal of the accused in CC.No. 753 of 2006 on the file of the II Metropolitan Magistrate for Railways, Waltair.
Counsel for the Appellant:
1. PUBLIC PROSECUTOR (AP) Counsel for the Respodent(S):
1. GNANESWARA RAO MITTIREDDI The Court made the following JUDGMENT:
1. This appeal, filed under Sections 378(3) & (1) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), is preferred by the Appellant/State against the judgment of acquittal passed by the Court of the II Metropolitan Magistrate for Railways, Visakhapatnam (for short, 'the Trial Court') in Calendar Case No.753 of 2006. By its judgment dated 27.03.2008, the Trial Court acquitted Accused Nos.1 and 2 of the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short, 'R.P. (UP) Act').
2. Perused the impugned judgment of acquittal rendered by the Trial Court, which is challenged under this appeal. It consisted of evidence of PWs.1 to 11 and documents marked Exs.P.1 to P.22 as well as Material Objects i.e., MOs.1 to 13.
3. The facts in a nutshell, which give rise to the present appeal, are as follows:
On 20.08.2005, the ASI, RPF Post, Vizianagaram, during the course of enquiry in Crime No.7/2005 under Section 3(a) of the R.P. (U.P.) Act, 3 proceeded with other staff to Rajam to search the iron scrap godown of one Govinda Rao. As the said shop could not be traced, the party noticed a person weighing railway material in front of another scrap shop near Srinivasa Theatre, Rajam. Upon questioning, the person disclosed his name as A.1 and admitted to stealing railway material from Ponduru Railway Station, which he was disposing of to A.2, the scrap shop owner. He further confessed to having sold similar material to A.2 about four days earlier. The said property was seized. On further enquiry, A.2 produced additional railway material kept in a tin container, for which he failed to produce lawful authority. Both A.1 and A.2 were arrested, the seized property was taken into custody, and Crime No.8/2005 was registered. Pursuant to A.2's confession, a further raid was conducted on 22.08.2005 at the scrap godown of J. Venkata Ramana, Ponduru, but no railway property was found. On 24.08.2005, the seized property was examined by the Senior Section Engineer, Permanent Way, Vizianagaram, who certified that it was exclusively designed and manufactured for Railways. The J.E., C&W, Vizianagaram, also verified the brake blocks and certified them as railway property. During the enquiry, RPF obtained ownership details from the MRO, Rajam, which revealed that the premises of the scrap shop belonged to Smt. Devarasetti Prameela Rani, who had leased it to A.2. After completion of the enquiry, a complaint was filed.
4. The Trial Court took cognizance of the offence under Section 3(a) of the R.P. (UP) Act against the A.1 and A.2. Upon their appearance before the Court, copies of the relevant documents were furnished to them, as mandated under Section 207 of the Cr.P.C. Thereafter, the accused were examined under Section 246(1) of the Cr.P.C., and a charge under Section 3(a) of the R.P. (UP) Act was framed against them. The accused pleaded not guilty and claimed to be tried.4
5. The Trial Court examined the accused as required under Section 313 Cr.P.C., to enable them to consider the evidence that had been led on the part of the prosecution and also appeared against them. But the accused denied the truth of the evidence adduced by the prosecution and reported no defence evidence.
6. After considering the material on record, the Trial Court found A.1 and A.2 not guilty of the offences punishable under Section 3(a) of the R.P. (UP) Act, and accordingly acquitted them.
7. The learned Assistant Public Prosecutor, representing the State, contended that the prosecution had established the ingredients of the offence punishable under Section 3(a) of the R.P. (U.P.) Act against the accused; the learned Magistrate ought to have convicted the accused based on the reliable evidence of LW.1 and other official witnesses, notwithstanding that PWs.2 and 3 turned hostile; the confession made by A.2 to the RPF was admissible in evidence and sufficient to sustain conviction, and that the evidence of PW.1, PW.4, and other Railway officials could not be discarded merely because the independent witnesses turned hostile.
8. On the other hand, the learned counsel appearing for the accused supported the findings and conclusions recorded by the Trial Court.
9. I have heard the learned counsel on both sides and perused the material on record, including the oral and documentary evidence produced by the prosecution before the Sessions Court.
10. The point for determination is:
Was the Sessions Court justified in acquitting the accused?
P O I N T:
11. Before re-appreciation of the evidence on record, it is necessary here to mention the power of the Appellate Court regarding interference. The Hon'ble 5 Supreme Court, in the case of A. Shankar V. State of Karnataka 1 , at paragraph 26 of the judgment, has held as follows:
"26. It is settled legal proposition that in exceptional circumstances the appellate Court, under compelling circumstances, should reverse the judgment of acquittal of the Court below if the findings so recorded by the Court below are found to be perverse i.e. the conclusions of the Court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate Court must bear in mind the presumption of innocence of the accused and further that acquittal by the Court below bolsters the presumption of his innocence."
12. In State of Goa V. Sanjay Thakran & Anr. 2, the Hon'ble Supreme Court, while considering the power of the appellate Court to interfere in an appeal against acquittal, after adverting to various earlier decisions on this point, has concluded as under:
"16.....while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the view arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with."
13. With the above principles in mind, this Court analyze the reasoning and ultimate conclusion of the Sessions Court in interfering with the order of acquittal.1
(2011) 6 SCC 279 2 (2007) 3 SCC 755 6
14. To prove the arrest of the accused and the seizure of the case property alleged to have been recovered from the possession of A.1 and A.2, the prosecution examined PWs.1 to 4. PW.1, S. Kantha Rao, ASI of RPF, testified that he, along with PW.2, N. Srinivasa Rao, and other staff, proceeded to Rajam in connection with the investigation in Crime No.7 of 2005; during the course of the investigation, they proceeded to search the iron scrap godown belonging to one Govinda Rao but could not trace the said shop; in the meantime, on the northern side road of Srinivasa Theatre at Rajam town, they noticed one person weighing railway material in front of an iron scrap shop; upon questioning, A.1 disclosed his identity and confessed that he had stolen the railway material from Ponduru Railway Station and was disposing of it to the scrap shop owner, A.2; A.1 further confessed that about four days earlier he had similarly stolen certain railway materials and sold them to A.2, which were seized by the RPF; on further questioning, A.2 produced certain railway materials kept inside a tin container; as A.2 failed to produce any legal authority for lawful possession of the railway property, the same was seized.
15. PW.1 further testified that MOs.1 and 2 were seized under the cover of seizure list vide Ex.P.20, and that A.2 produced MOs.3 to 13, which were seized under Ex.P.21. He further stated that, along with the Junior Engineer, Ponduru, he visited the place of theft and prepared rough sketches under Exs.P.7 and P.8, and that the properties were examined by the expert, who issued certificates under Exs.P.9, P.10, and P.11. In cross-examination, PW.1 admitted that he had not received any complaint with respect to MOs.1 to 13. PW.2, ASI, corroborated the version of PW.1.
16. PW.4, Head Constable, accompanied PWs.1 and 2 during the raid and corroborated their evidence regarding the seizure. PW.3, the mediator, however, did not support the prosecution's case. The Trial Court, after analyzing the evidence of PWs.1 to 4, observed that they were examined to prove the seizure and the seizure had been effected outside the jurisdiction of 7 the Railways. The Trial Court then referred to Section 166(1) to (4) of the Cr.P.C., which reads as follows:
S.166 When officer in charge of police station may require another to issue search-warrant:
1. An officer in charge of a police station or a police officer not being below the rank of sub-Inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.
2. Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
3. Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under Sub-Section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station.
4. Any officer conducting a search under Sub-Section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in Sub-Sections (1) and (3) of section 165.
17. After extracting Section 166 of the Cr.P.C., the Trial Court observed that it is mandatory for an officer conducting a search outside the jurisdiction of the station of which he is in charge to forthwith send a notice of such search to the officer in charge of the police station within whose limits the place is situated. It further held that it is also mandatory to send a copy of the list of all things intended to be searched, if any, to the said officer in charge, and to forward copies of the records stating the grounds for the search, along with the list of articles sought to be seized, to the Magistrate empowered to take cognizance of the offence.
818. The Trial Court rightly observed that when the RPF conducts searches outside the jurisdiction of the Railways, it must invariably follow the procedure contemplated under Sections 100, 165, and 166 of the Cr.P.C.
Evidently, according to the prosecution, PWs.1 to 4 proceeded to conduct an enquiry in Cr.No.7 of 2005 without obtaining a search warrant. As seen from the record, by the time the raid was conducted by PWs.1 to 4, the case in Cr.No.7 of 2005 had already been registered on 17.08.2005. The Trial Court, on appreciation of the record, rightly concluded that no search warrant was obtained, no intimation was given to the local police regarding the RPF's intention to search for the village of Rajam to detect a particular thing, and no such intimation was forwarded to the Court. In view of these infirmities, the Trial Court held that the search, even if believed, was not legal. Consequently, it further observed that the alleged finding of A.1 near the shop of A.2, along with MOs.1 and 2, the subsequent search of A.2's scrap shop, beyond the territorial jurisdiction of the RPF, and the seizure of MOs.3 to 13 were not in accordance with the procedure established by law. Furthermore, it is evident that the Investigating Officer has provided no explanation, nor does any justification emerge from the evidence of PWs 1, 2, and 4, for the non- compliance with the mandatory requirements of Section 166 of the Cr.P.C. Since the mediator did not support the prosecution's case, the Trial Court concluded that the seizure had not been proved beyond reasonable doubt.
19. The prosecution contended that the seized properties were railway properties. In support of its case, reliance was placed on the evidence of PWs.5 to 7, who certified that the said properties were railway materials. On the strength of this evidence, it was argued that the prosecution had established that the seized properties belonged to the Railways, and that the accused had failed to produce any proof of lawful possession thereof.
20. As seen from the record, PW.5 examined MOs.1 to 11, opined that they were railway properties, and issued Ex.P.11. Similarly, PW.6, Senior Section 9 Engineer, Railways, verified MOs.1 to 11, certified them as railway materials, and issued Ex.P.9. The Trial Court observed that the prosecution had not explained why two different officials examined the same properties and why separate certificates were obtained. PW.7, Senior Technician, was examined to prove that he had examined MO.12 and issued Ex.P.10.
21. The Trial Court further noted that the theft report and Y-form had admittedly been obtained after the alleged seizure of the property. It was observed that the seizure of the property from A.1 and A.2 was not in accordance with the law, and, therefore, the alleged possession of the property by A.1 and A.2 could not be said to have been proved.
22. The prosecution examined PW.9, Ticket Collector, to prove the alleged confessions made by A.1 and A.2 under Exs.P1 and P2. Upon appreciating the evidence of PW.9, the Trial Court observed that his testimony regarding the confessions did not inspire confidence, and accordingly recorded its conclusion. This Court, upon re-appreciation of the same evidence, finds no reason to differ from the view expressed by the Trial Court.
23. In view of the above circumstances, and upon a comprehensive evaluation of the entire evidence, the Trial Court rightly concluded that the prosecution had failed to establish the possession of the railway properties by A.1 and A.2 beyond a reasonable doubt. Consequently, the accused were found not guilty of the offence under Section 3(a) of R.P. (U.P). Act, and were acquitted of the said charge.
24. In Mohan @ Srinivas @ Seena @ Tailor Seena V. State of Karnataka3, the Hon'ble Supreme Court has observed the scope of section 378 of the Code as under:
"Section 378 Cr.P.C. enables the State to prefer an appeal against an order of acquittal. Section 384 Cr.P.C., speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision 3 2021 (15) SCALE Pg. 184 10 by acquitting the accused, the presumption of innocence gathers strength before the Appellate Court. Consequently, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of the first instance has its advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it. Still, it is duty bound to satisfy itself whether the decision of the trial Court is both a possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty and the advantage of having seen the witnesses.
25. So far as the main issue is concerned, that scope of acquittal appeal is well defined by now by series of decisions and the same is not to be repeated time and again, however, one of the recent decision in case of Harbeer Singh V. Sheeshpal 4 , the Hon'ble Supreme Court laid down that mere fact that another view could also have been possible that cannot be a ground to reverse the acquittal. The powers of High Court are wide enough to turtle the acquittal order, however, some parameters are well defined by series of decisions in which this Court is of the considered opinion that State has not made out any case which would permit this Court to exercise such wide powers. Neither any material irregularity is pointed out nor any perversity is reflecting on the contrary it is reflecting that there is an application of mind on the part of learned judge as the entire material on record has been dealt with specifically and the principle of appreciation of evidence appears to have been rightly undertaken by the Court below and therefore when such eventuality is reflecting sitting in a jurisdiction dealing with an order of acquittal Court is of the opinion not to interfere with such exercise. The relevant observations of the aforesaid decision in paras: 10 and 11 (Cri.L.J.) are reproduced herein after:
"10. The above principle has been reiterated by this Court in a number of judicial decisions and the position of law that emerges from a comprehensive survey of these cases is that in an appeal under Article 136 of the Constitution of India, this Court will not interfere with the judgment of the High Court unless the same is clearly unreasonable or perverse or 4 (2017) CriLJ 169 11 mainfestly illegal or grossly unjust. The mere fact that another view could also have been taken on the evidence on record is not a ground for reversing an order of acquittal.
11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond a reasonable doubt lies with the prosecution, and it never shifts. Another golden thread that runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view that is favourable to the accused should be adopted.
26. Considering the aforesaid set of circumstances and in view of the conjoint reading of the conclusion arrived at in co-relation with the evidence on record, this Court is of the considered opinion that the prosecution makes out no case to establish the guilt of the respondents / accused.
27. It is a settled principle of law that if the Trial Court takes the view, it should not be reversed, even if another view is possible. The view taken by the Trial Court is a plausible one. Therefore, considering the facts and circumstances of the case, this Court is not inclined to reverse the Trial Court's finding.
28. The Trial Court rightly reached its conclusion, providing sound and justifiable reasons. Therefore, the appellant's request for interference lacks merit. A re-appreciation of the evidence reveals no misdirection or misinterpretation by the Trial Court. Upon careful reconsideration, there is no flaw in the findings of fact by the Trial Court. Therefore, the acquittal of the respondents cannot be interfered with. Accordingly, the appeal against the acquittal is dismissed, and the order of acquittal is confirmed, and there is no reason to interfere with the judgment of the Trial Court. Accordingly, the point is answered.
29. In view of the above and for the reasons stated above, the present Criminal Appeal No.65 of 2010 fails and the same deserves to be dismissed and is dismissed, accordingly. The judgment and order of acquittal passed by 12 the learned II Metropolitan Magistrate for Railways, Visakhapatnam, in Calendar Case No.753 of 2006, dated 27.03.2008, stands confirmed.
Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed.
_____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 10.09.2025 SAK 13 THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL NO: 65 of 2010 Date: 10.09.2025 SAK