THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1097 OF 2004 ORDER: This is an appeal filed at the instance of the State questioning the acquittal of the accused in S.C.No.152 of 2003 by the Additional Assistant Sessions Judge, Chittor on 15.10.2003. The respondents/accused were prosecuted for the offences under Sections 457 and 413 IPC. According to the prosecution P.Ws.1 and 2 are the husband and wife and are residents of N.R.Pet village and they went to Tirupati on 17.11.2002 at 6.00 A.M., and returned back to their home on 19.11.2002 in the morning and found the doors of their house were broke-opened and the iron safe was missing from their house and also found missing of gold and silver articles from the said iron safe. Thereafter, P.W.1 lodged a complaint Ex.P.1 in N.R. Pet Police Station. P.W.15, the Head Constable of N.R. Pet Police Station has registered a case in Crime No.35 of 2002 under Sections 457, 380 and 413 IPC and visited the scene of offence and prepared the rough sketch of the scene of offence and recorded the statements P.Ws.1 to 3 and gave information to the Finger Prints Expert P.W.14, who visited the scene of offence and collected chance prints and gave his opinion under Exs.P.10 and P.11. On 09.01.2003 P.W.17, who is the Sub-Inspector of Police, N.R. Pet Police Station, arrested accused No.4 at 4.00 P.M. near Sreenivasa Kalyanamandapam at Chittor and recorded his confessional statement and recovered the gold minor chain with baba dollar from his possession under the cover of Panchanama in the presence of A.Devarajulu and N.Mohan Raj and remanded him to judicial custody. Subsequently, the then Inspector of Police P.W.20 visited the Madanapalle town on 21.01.2003 along with accused No.4 and recovered gold ornaments and other stolen property pertaining to other crimes from P.Ws.11 and 12 and D.Vikas in the presence of mediators under the cover of mahazarnamas Exs.P.5 and P.7. On the next day P.W.20 went to Dharmarajula temple in Chlittoor town and arrested accused Nos.1 to 3 and 5 to 7 in the presence of mediators P.Ws.9 and 10 and recovered the stolen property pertaining to this crime under the cover of mahazar Ex.P.8 and remanded them to judicial custody. On 24.01.2003 P.W.1 identified M.Os.1 to 12 in the presence of P.W.13, who is the V.A.O of Ananthapuram, in the church of Ananthapuram under the cover of Ex.P.2 identification proceedings. After completion of the investigation, P.W.20 – Investigating Officer filed the charge sheet against the accused. Since the offence under Section 413 IPC is exclusively triable by the Court of Sessions, IV Additional Judicial Magistrate of First Class, Chittoor committed the case to the court of Sessions and the said matter was made over to Additional Assistant Sessions Judge, Chittoor for disposal. The learned Additional Assistant Sessions Judge, Chittor has framed the charges under Section 457 IPC against accused Nos.1 to 3 and 5 to 7 and under Section 413 IPC against accused No.4. All the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 20 and got marked Exs.P.1 to P.14 and M.Os.1 to 12. The learned Additional Assistant Sessions Judge by taking into consideration of the said oral and documentary evidence found the charges under Sections 457 and 413 IPC were not proved against the accused and thereby acquitted all the accused. Against the said acquittal, the State has preferred the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Section 457 IPC against accused Nos.1 to 3 and 5 to 7 and under Section 413 IPC against accused No.4 beyond reasonable doubt? P O I N T: The learned Public Prosecutor has pleaded that the prosecution could able to establish the commission of theft in the house of P.Ws.1 and 2 on the intervening night of 18/19.11.2002 and the gold ornaments kept in iron safe were found missing from their house and the prosecution could able to recover M.Os.1 to 12 at the instance of accused Nos.1 to 3 and 5 to 7 in the presence of mediators P.Ws.9 and 10 under Ex.P.8 mahazar and thereby the prosecution could able to establish that the accused has committed lurking house-trespass by night with an intention to commit theft of the property punishable under Section 457 IPC The learned Public Prosecutor also further pleaded that the M.O.3 was recovered from the possession of accused No.4, which was lost by P.Ws.1 and 2 and as per his confessional statement; he has purchased the same from accused Nos.1 to 3. Therefore, he has purchased the stolen property knowing fully well that it is stolen property; as such the prosecution could able to establish the offence under Section 413 IPC against accused No.4. The defence counsel has pleaded that P.W.1 was shown M.Os.1 to 12 in the police station before conducting identification parade, as such he could able to identify the property in the identification parade conducted by P.W.13. He further pleaded that the descriptive parties of M.Os.1 to 12 were not given by P.W.1 in Ex.P.1 complaint, therefore his identifying the property in the test identification parade conducted by P.W.13 is not trustworthy and no reliance can be place on it. The defence counsel further pleaded that P.Ws.9 and 10, who are the mediators, in their cross-examination have stated that they cannot say the particulars of the property and details of the persons arrested at Dharmarajula temple by P.W.20. Therefore, the prosecution has failed to establish the recovery of M.Os.1, 2 and 4 to 12 from the possession of accused Nos.1 to 3 and accused Nos.5 to 7, and there is no evidence on record to show that the accused have trespassed into the house of P.W.1 on the intervening night of 18/19.11.2002 with an intention to commit theft of M.Os.1 to 12. Therefore, the prosecution has failed to establish the said charges against the accused. In the grounds of appeal, the public prosecutor has pleaded that P.Ws.1 and 6 are the victims and their evidence regarding the identification of the stolen property is cogent, consistent and creditworthy and the identification of property was established in the identification parade. It is also pleaded in the grounds of appeal that simply because P.Ws.11 and 12 and D.Vikas were not made as accused as they were receivers of stolen property, is not fatal to the case of prosecution to establish the charges against the accused. The learned Additional Assistant Sessions Judge has disbelieved the evidence of P.Ws.9 and 10 with regard to recovery of property at the instance of accused Nos. 1 to 3 and accused Nos. 5 to 7 and he has disbelieved the recovery of M.O.3 from the possession of accused No.4 as the receivers of the stolen property P.Ws.11 and 12 and D.Vikas were not made as accused to this case. He also did not believe the identification of property by P.W.1 in the identification parade conducted by P.W.13. Admittedly, the property belongs to P.W.1 and his daughter, P.W.6. P.W.2 is the wife of P.W.1. P.Ws.1 and 2 have stated about their going to Tirupathi on 17.11.2002 and returning on 19.11.2002 and on that day, they found the doors of their house were broke open and missing of iron safe from their house. According to them, M.Os.1 to 12 were kept in the said iron safe, which was found missing from their house. According to prosecution, the said almyrah was found in the barren lands of Lingama Naidu situated near N.R. Pet and the Head Constable P.W.15 has visited the scene of offence and seized the said almyrah and handed over the same to P.W.1. Therefore, the prosecution could able to establish the broke-open the house of P.Ws.1 and 2 and committing theft of M.Os.1 to 12 from their steel almyrah. With regard to identification of the property, the test identification was conducted by P.W.13 on 24.01.2003 at Ananthapuram church and P.W.1 has identified the same. But P.W.1 in the cross-examination has stated that at the first instance police have shown M.Os.1 to 12 in the police station and subsequently he identified M.Os.1 to 12 before the V.A.O. P.W.13 in Ananthapuram church. Therefore, much reliance cannot be placed on test identification parade conducted by P.W.13 with regard to identification of M.Os.1 to 12. The lower Court has disbelieved the evidence of P.Ws.1 and 2 with regard to identification of M.Os.1 to 12 on the ground that P.W.1 has not given the descriptive particulars of M.Os.1 to 12 in Ex.P.1 complaint. Even though the descriptive particulars of M.Os.1 to 12 are not given in the complaint as the said property belong to P.Ws.1, 2 and 6, they can identify the gold ornaments belong to them. Even in the absence of test identification parade, as they have identified the property in the Court during the course of their giving evidence, it cannot be said that M.Os.1 to 12 do not belongs to P.Ws.1, 2 and 6. The next point to be considered is whether the said property M.Os.1 to 12 were recovered at the instance of the accused. According to prosecution on 09.01.2003 P.W.17 arrested accused No.4 near Srinivasa Kalyanamandapam at Chittoor and recorded his confessional statement and recovered one minor gold chain from him and at his instance recovered the gold ornaments pertaining to other crimes at Madanapalle from P.Ws.11, 12 and D.Vikas in the presence of P.Ws.9 and 10 mediators. Since the property recovered at the instance of accused No.4 from P.Ws.11, 12 and D.Vikas is not pertaining to this case, the same is not relevant for the purpose of deciding this case. According to the charge framed against accused No.4 that he habitually receives or deals in property, which is known to be stolen property. As the property, which was recovered from P.Ws.11, 12 and D.Vikas at the instance of the accused, is not pertaining to this case, it cannot be said that he is the receiver of stolen property in this case. As the prosecution could not establish that M.O.3 gold chain, which was seized from the possession of accused No.4, is the stolen property and he knowing fully well that he has received the stolen property from accused Nos.1 to 3, the prosecution could not establish the charge under Section 413 IPC against accused No.4. With regard to recovery of M.Os.1, 2 and 4 to 12 from accused Nos.1 to 3 and 5 to 7, the prosecution has examined mediators P.Ws.9 and 10 and the investigating officer P.W.20. According to P.W.20 on 22.01.2003, he arrested accused Nos.1 to 3 and 5 to 7 at Dharmarajula Temple in Chittoor town in the presence of P.Ws.9 and 10 and recovered gold and silver ornaments under the cover of mahazar Ex.P.8. P.W.20 did not disclose which property was recovered from which of the accused. P.Ws.9 and 10 even though stated in their chief-examination that they went to Dharmarajula gudi situated in between Chittoor- Thenabanda and seized the articles from the accused under cover of Ex.P.8, but they admitted in their cross-examination that they cannot say the details of the accused and the properties recovered from them. Therefore, P.Ws.9, 10 and 20 did not state from which accused, which of the property was recovered. But Ex.P.8 discloses the details of the property recovered from each accused. P.Ws.9 and 10, who are the mediators for Ex.P.8 could not able to state specifically about the property recovered from each of the accused. Therefore, it is not safe to rely upon Ex.P.8 mahazar, which was prepared by P.W.20 investigating officer. Even if it is accepted that M.Os.1 to 12 were recovered at the instance of accused Nos.1 to 3 and 5 to 7, there is no evidence to show that the accused are trespassed into the house of P.W.1 by broke open the lock on the intervening night of 18/19.11.2002. As the prosecution failed to establish the recovery of M.Os.1 to 12 at the instance of the accused, which belong to P.Ws.1,2 and 6, the prosecution could not establish the charge under Section 457 IPC against accused Nos.1 to 3 and 5 to 7 beyond reasonable doubt. Therefore, the finding of the Additional Assistant Sessions Judge in holding that the accused are found not guilty for the charges under Sections 457 and 413 IPC is justified and the said finding does not warrant any interference by this Court. In the result, the Criminal Appeal is dismissed. _______________________ P.DURGA PRASAD, J 1st July, 2011 KSP