Public Prosecutor, High Court of Andhra Pradesh vs B. Ramakrishna and Others

Aggrieved by the orders of the Judicial First Class Magistrate, Kalwakurthy, in C.C. No. 284 of 1988, acquitting the accused for the charges u/Ss. 379, 420 and 423, IPC, the State preferred this appeal.

Mr. Sharma, appearing for the Public Prosecutor, strenuously contended that the Magistrate is not right in dismissing the complaint on the ground that there was 40 days delay in reporting the case of theft without considering the explanation offered by the prosecution. Likewise, it is contended by him, that on merits also though the prosecution proved its case beyond doubt by examining as many as 8 witnesses, on a misreading of the evidence the Magistrate dismissed the case of the prosecution.

It is the case of the prosecution that on 6-12-1987 one Md. Ismail of Hyderabad lodged a complaint with Amangal Police Station stating that 40 days back i.e., on 16-10-1987 while he was taking his dinner in the hotel by stopping his lorry bearing No. ADA 88 on the roadside, the accused herein have stolen away the lorry and the efforts made by him to trace them resulted in vain and, hence, he was forced to lodge the complaint. On receiving the complaint, the police, Amangal registered the same as Cr. No. 84/87 and issued F.I.R., Ex P-6. After completion of investigation, they filed charge sheet for the offences punishable u/Ss. 379, 420 and 423, IPC against the accused contending that the accused having stolen the vehicle have shifted the vehicle to Hyderabad and got its colour and number changed by PW 3, that they purchased a disposal vehicle of R.T.C. from one Mirza Akbar Baig and changed the engine of the lorry No. ADA 88 to the disposal vehicle of R.T.C., and got it registered under registration No. AET 1728 in the name of A-3, and hence, they are liable for the offences punishable under the above sections.

During the investigation, the owner of the lorry bearing No. ADA 88, Md. Ismail, died. During the trial, while the prosecution examined 8 witnesses-PWs 1 to 8 and marked Ex.P-1 to P-7 and M.Os. 1 to 3, two witnesses were examined and Exs.D-1 to D-30 were marked on the side of the defence.

Having gone through the evidence, the Magistrate dismissed the complaint mainly on the ground that the very information was given to the police after 40 days of the occurrence of the incident and no explanation is forthcoming. On merits also having found certain discrepancies in the evidence of prosecution witnesses the Magistrate acquitted the accused of the offences levelled against them.

I have gone through the judgment of the Court below. The prosecution did no satisfactorily explain the delay in lodging the complaint and to that extent the Magistrate is justified in dismissing the complaint. But, coming to the merits of the case, I have gone through the judgment of the Court below and it is seen that the Magistrate has taken a peculiar view in assessing the evidence of the witnesses and disbelieved them for not able to say the number or particulars of the house from where the M.Os. 1 and 2 were recovered, name of the Grampanchayat so on and so forth, forgetting the fact that witnesses deposing nearly after 8 years after the occurrence of the incident and it is very difficult for them to remember the minute details of the seizure of the vehicle. To that extent, the Magistrate''s judgment requires interference by this Court.

Coming to the facts of the case, while the case of the prosecution is that A-3 himself presented the papers seeking registration of the vehicle, it is the case of the accused that they purchased the re-registered R.T.C. disposal vehicle from Mirza Akbar Baig. Though the senior assistant working in R.T.A. office was examined as PW 2, the prosecution has not taken care in getting the application filed by A-3 marked as an exhibit or examined Mirza Akbar Baig from whom the accused alleged to have purchased the R.T.C. dismissal vehicle. With she result, it is not in evidence at whose instance the engine of lorry No. ADA 88, which was stolen, was fixed to the R.T.C. disposal vehicle i.e., whether Mirza Akbar Ali Baig has changed the engine or A-3, as contended by the accused. Unless the prosecution proves this fact either by marking the application said to have been filed by Yadaiah (A-3) seeking re-registration of the R.T.C. disposal vehicle or by examining Mirza Akbar Baig, the issue cannot be conclusively decided and the accusing finger will not show at the accused. As the prosecution failed to prove this aspect, I am not inclined to interfere with the order of the Magistrate. Further, the incident has taken place in October, 1987 i.e., nearly one decade back and further the prosecution''s explanation is filing the complaint after 40 days of the occurrence of the incident is not convincing. Hence, though I find that the appreciation of evidence by the Magistrate is very unsatisfactory, I am not inclined to interfere with the order of the Magistrate.

In the result, the appeal is dismissed.

Appeal dismissed.