HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.1099 OF 2006 DATED: 01.08.2011 BETWEEN: Mallika Yellaiah and others .. Appellants And The State of A.P. Rep.by Public Prosecutor .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal NO.1099 OF 2006 JUDGMENT: This criminal appeal arises out of the judgment dated 23.03.2006 passed by the Assistant Sessions Judge, Proddatur in Sessions Case No.394 of 2005. 2. In all six accused were put up for trial before the learned Sessions Judge for the charges under Sections 148, 341, 394, 395 IPC read with 149 IPC. 3. The learned trial Court acquitted Accused Nos.4 to 6, A7 and A8 were said to be absconding and A1 to A3, who are the appellants in the present appeal were convicted for the charges mentioned above. A-1 to A-3 were sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 148 IPC, simple imprisonment for a period of one month for the offence punishable under Section 341 IPC, rigorous imprisonm ent for a period of seven years and fine of Rs.500/- each for the offence punishable under Section 395 IPC, in default to suffer simple imprisonment for three months and they were further convicted and sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 394 read with 149 IPC and fine of Rs.500/- each, in default, to suffer simple imprisonment for three months each. Substantive sentences were directed to run concurrently. 4. I have heard Dr K.Satyanarayana Rao, learned Legal Aid Counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State. 5. Shortly stated, the prosecution case is like this: PW1 (P.Harinath) is the resident of Railway Koduru and owner of the tempo bearing No.A.P 03 U 7833. On 19.02.2005 at about 6.30 PM, he started in the said mini lorry with the load of plantain belonging to Shaik Rahamathulla-PW.3, and Shaik Mohammed Izaz- PW.5 from Pulivendula to Hyderabad. PWs.1 to 5 were present in the lorry. After crossing Jammalamadugu, the tyre of the mini lorry was punctured. The driver stopped the vehicle on the left side of the road for repair and all of them got down from the lorry and were standing on the road. At that time some unknown offenders carrying sticks surrounded them and caused simple injuries with sticks to PWs.1 and 2, fisted PW-5 on his face, threatened them to kill by showing knives and robbed cash of Rs.2,500/- from PW.1 and Rs.800/- from PW.2 and Rs.1700/- from PW.5 and one wrist watch from PW.4 and cash of Rs.150/- from PW.3. PWs.1 to 5 noticed the culprits wearing slacks and nickers and they were all black in complexion. 6. After the incident, a report was lodged before Peddamudiam Police Station, basing on which a case in Crime No.11 of 2005 was registered and was investigated into. After filing of the charge sheet, A1 and A2 were put up for trial before the learned Assistant Sessions Judge and after conclusion of the trial, A1 to A3, the appellants herein were convicted and sentenced to punishment as aforesaid, against which, they preferred the present criminal appeal. 7. According to the prosecution on 16.06.2005 at about 3.00 AM, PW.9 the Inspector of Police along with his staff noticed group of some persons on the road near Gurivikottala Village, on seeing them, the group of persons tried to flee away. The police party surrounded them who are six in number. PW.9 interrogated them and seized sickle, country sticks, one bag, daggers, two torchlights from them under a panchanama in the presence of mediators. Thereafter, on the disclosure statement made by them, A3 went inside his house and produced cash of Rs.2,500/-, two wrist watches and one gold ring. It is stated that when interrogated, six persons confessed about the commission of offence in the present case. 8. On completion of investigation, charge sheet was laid against the appellants and other accused. 9. In the course of the trial before the learned Assistant Sessions Judge, the prosecution in order to establish the guilt of the accused, examined PWs.1 to 12 and marked Exs.A.1 to A8 and M.O.1. 10. The offence took place on 19.02.2005 at about 10.00 PM. The appellants/accused were said to be arrested on 16.06.2005. In view of the long gap between the incident and the arrest of the appellants, it is highly difficult to believe that the appellants were in possession of the amount which they robbed in the course of the incident in the present case. Therefore, it is not possible to accept that the property which was robbed is the same that was recovered from the appellants. Thus, the entire case rested on the possibility of PWs.1 to 5 identifying the assailants during the course of the incident which occurred at 10.00 PM on 19.02.2005. 11. A test identification parade was conducted by the Magistrate- PW.10 on 18.06.2005 at Sub-jail, Jammalamadugu. The evidence of PW.10 reveals that Pw.1 identified the non-suspect as culprit. PW.2 also identified the same non-suspect as culprit. PW.3 also identified the same non-suspect K.Pullanna as culprit. According to the Magistrate, PW.5 only identified A1 and A2 as culprits. Thus, during the course of test identification parade PW.5 was the only witness, who identified A1 an A2. The remaining witnesses identified K.Pullanna, a non-suspect as culprit. PWs.1 to 4 however, identified some accused during the course of trial before the Magistrate, but it is of no value as they were unable to identify the same person produced before them in the course of the test identification parade. All the witnesses stated in their cross-examination that it was dark when the incident took place. PW.2 specifically admitted in the cross-examination that he could not identify the assailants at the time of incident due to darkness. The defence version is that before conducting the test identification parade, the photographs were shown to the witnesses. The evidence of PW.5, who identified A1 and A2 during the course of test identification parade also, does not inspire any confidence. He stated in his evidence before the Court that A-1 fisted on the nose and A2 beat him with a stick on his back. According to him, he received injuries, but he was not sent for medical examination or for treatment. The explanation offered by PW.5 is that he received only superficial injuries on his nose and back. Though, he stated that he received some contusions and showed them to the police, it is not understandable as to why he was not sent for medical examination. To a suggestion in the cross- examination that he stated before the police that a small boy aged about 15 years fisted on his nose he admitted and the said contradiction was marked in 161 Cr.P.C. statement. The charge sheet reveals that the age of A1 is 48 years and the age of A2 is 32 years. None of the accused is aged 15 years. Since admittedly, according to all the witnesses, there was darkness at the time of the incident and the way in which PW5 deposed, it is highly difficult to believe as to whether PW.5 was in a position to identify the assailants. Therefore, the evidence of PW.5 also does not inspire any confidence. 12. Upon thoroughly analyzing the evidence on record, I would like to point out that the evidence of recovery as spoken to by PW-9 long time after the incident does not inspire any confidence. Further, the evidence in regard to the identification of the accused is also not satisfactory. A genuine doubt 2ould arise whether PWs.1 to 5 were in a position to identify the assailants. The prosecution, in my view, failed to establish the identity of the appellants and it is quite unsafe to convict the accused basing on the evidence of PW.5 alone, who claims to have identified the appellants at the time of incident. Another important factor which requires to be noticed is that PWs.1 to 3 identified one non-suspect K.Pullanna as the person who participated in the commission of the offence. This would clearly show that the witnesses were not in a position to identify the assailants. The appellants are therefore, entitled for benefit of doubt and the learned trial Court had erred in convicting the appellants for the offences aforesaid. 13. In the result, Criminal Appeal is allowed setting aside the conviction and sentences imposed on the appellants-accused Nos.1 to 3 by the Assistant Sessions Judge, Proddatur, in Sessions Case No.394 of 2005, dated 23.03.2006. The appellants-accused Nos.1 to 3 are acquitted of the offences with which they were charged. The appellants-accused Nos.1 to 3 are set at liberty forthwith, if they are not required to be detained in any other case. _________________ Date: 01.08.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal NO.1099 OF 2006 DATE: 01.08.2011