THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.Rc.No.947 of 2004 JUDGMENT: This revision has arisen out of the concurrent findings recorded by the II Additional Judicial First Class Magistrate, Kovur and the V Additional District and Sessions Judge (Fast Track Court), Eluru in C.C.No.531 of 1994 dated 26.10.1999 and Crl.A.No.238 of 1999 dated 21.1.2004 respectively. The prosecution case is as follows: On 29.7.1994 at about 9.30 p.m., when P.W.1 in the case was waiting near Vijaya Talkies, Rajahmundry along with his Auto bearing No.ATV 3884, A1 to A3 boarded the Auto to go Dommeru on a hire of Rs.50/- and when the Auto reached the approach road of the High School at Dommeru at about 10.30 p.m., A1 to A3 got the Auto stopped and threatened P.W.1 at the point of knife and took the Auto towards Dommeru High School and thereafter tied his hands and legs with ropes and bet him and robbed the Auto. Thereafter, P.W.1 gave report to the Police Station at Kovur, which was registered in Cr.No.131 of 1994 on its file. During the course of the investigation of the case, the police seized the Auto from the possession of A1 and arrested him. A1 was tried for the offence punishable under Section 394 IPC and the case against A2 and A3 was separated. For the prosecution, the victim got himself examined as P.W.1 besides examining P.Ws.2 to 7 and marked Exs.P1 to P5. For the defence, none was examined and no documents were marked. The trial Court, on due consideration of the matter found A1 guilty of the offence punishable under Section 392 IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.200/- and in default of payment of the fine amount, to suffer simple imprisonment for a period of one month, whereas questioning the same, the accused preferred Crl.A.No.238 of 1999 and the appellate Court dismissed the appeal confirming the conviction and sentence imposed by the trial Court. Hence this revision. It is the contention of learned counsel for the revision petitioner-A1 that there was no identification of A1 before the trial Court by the main witnesses examined and in fact, no identification parade was conducted for identifying him and further, the Auto which was given to the defacto- complainant was not produced before the Court at the time of trial and only corresponding mediator’s report with regard to the seizure of it was marked and therefore, the prosecution failed to establish the alleged offence, but still the Courts below upheld the prosecution version and imposed the conviction and sentence as already pointed out, which therefore are not tenable and accordingly acquittal is to be recorded in favour of the accused. Therefore, it is to be mainly considered as to whether there was proper identification of the accused before the trial Court and the same can be accepted and further whether the recovery of the case property has been established by placing cogent evidence. P.Ws.4 and 5 were examined as eyewitnesses to the incident and they did not identify the accused at the time of trial. Further, at the time of chief- examination, P.W.1 identified A1 as the person concerned with the case, but in his cross-examination, he deposed that he could not say whether A1 participated in the crime or not. Therefore, there was no proper identification of A1 before the trial Court with regards to the alleged offence of robbery and hence, charge against A1 under Section 394 IPC goes and therefore the findings recorded by the Courts below in that context are not tenable and are liable to be set aside. Further, alternatively it has to be seen as to whether A1 can be convicted and sentenced on the ground that he was in possession of stolen property. The prosecution placed good evidence to the effect that the property of PW.1 was lost and the same was recovered. Even though the case property was not produced before the trial Court and was not marked, the corresponding panchanama can be taken into consideration. The case property was seized from the possession of A1 by P.W.5 in the presence of P.W.3 about which there is cogent and acceptable evidence. Therefore, it is proved that the property lost by P.W.1 was recovered from A1. There is no explanation as to how A1 came into possession of the property, therefore it is a fit case to bring the case under Section 411 IPC. Therefore, for the foregoing reasons, the conviction and sentence imposed against A1 for the charge under Section 392 are set aside and he is convicted under Section 248(2) Cr.P.C. for the offence punishable under Section 411 IPC. Further, it is represented that A1 was in jail for nine months. Taking into consideration the various facts and circumstances of the case including the fact that A1 has been attending the Courts since long time, I feel it is reasonable to reduce the sentence to the period of detention already undergone by A1. The revision is accordingly disposed of. _________________________ G.KRISHNA MOHAN REDDY, J Date: 15.6.2011 DA THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.Rc.No.947 of 2004 16.6.2011 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.Rc.No.947 of 2004 Date: 16th June, 2011 Between: Bathula Veeranjaneyulu .. Petitioner (A1) And State of A.P., rep. by the Public Prosecutor. .. Respondents