HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.NO.402 OF 2009 DATED: 13.08.2009 BETWEEN: Shaik Walli Miya .. Appellant And The State of A.P. .. Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.NO.402 OF 2009 JUDGMENT: This criminal appeal is directed against the judgment dated 19.11.2008 in S.C.No.408 of 2007 on the file of the IV Additional Metropolitan Sessions Judge Hyderabad, wherein the appellant/A3, along with two others A1 and A2, was found guilty for the offence punishable under Section 392 IPC and was convicted for the same and sentenced to undergo rigorous imprisonment for seven years. 2. Heard learned counsel for the appellant/A3 and the learned Additional Public Prosecutor appearing for the State. Perused the records. 3. The appellant-A3, along with two others, is facing prosecution in Sessions Case No.408 of 2007 for the offences punishable under Sections 395 and 427 IPC in Crime No.359 of 2005 of Police Station Automobile Wing, CCS, DD, Hyderabad. 4. The case of the prosecution, in brief, is as follows: The complainant was doing money lending and jewellary business at Gulzar House in the name and style of M/s Muktha Jewellers. On 04.05.2005 at about 10.30 PM, he closed the business and talked with his friends for 30 minutes. Thereafter, he left the shop at 12.10 midnight along with gold and cash in his Maruti car. When the car was taking turn into the lane in which his house is situate at about 00.30 hours i.e on the next day i.e. 05.05.2005, he found a car stopped in the middle of the road and four persons got down from the said car and attacked him with knives and swords. The complainant gave a report immediately to the police, regarding the incident wherein he stated that he can identify the persons, who committed the offence. Based on the complaint–Ex.P.1 given by PW.1, the Inspector of Police – PW.8 registered FIR in Crime No.152 of 2005 of Narayanaguda Police Station. During the course of investigation, PW.8 – Inspector inspected the scene of offence and drew rough sketch and recorded the statements of witnesses. Subsequently, the case was transferred to D.C.P, CCS, DD, Hyderabad where again it was registered as FIR in Crime No.359 of 2005. PW.9 – the Inspector of Police, Automobile Team, CCS received information from the Superintendent of Police, Osmanabad District of Maharashtra State about arrest of A1 to A3 in a murder case in Crime No.100 of 2005 for the offence punishable under Section 302 read with 34 IPC of Murrum Police Station of Osmanabad District, Maharashtra State. Accordingly, he proceeded to Morrum Police Station and obtained copies of FIR and confessional panchanama and produced the accused before the XII Additional Chief Metropolitan Magistrate, Hyderabad on P.T. warrant on 23.08.2005 and A1 to A3 were remanded to judicial custody. The accused were granted police custody for 10 days from 27.08.2005 to 05.09.2005. During the said period, PW.9 based on the confessional statements of the accused, recorded their statements in the presence of PW.5 and another and recovered one gold ring – MO1 of 1 gm in the house of A3 under panchanama. 5. According to the prosecution, A1 to A3 along with A4 and A5 hatched a plan to rob PW.1 and in pursuance thereof secured an Indica car by committing theft of the same from Street No.6 of Himayathnagar and that A3 and A4 followed PW.1 from the shop up to Liberty and A3 and A4 informed A5 on cell phone about the movements of PW.1. A1, A2 and A5 kept their Indica car on the road and blocked the way of PW1 and attacked on the Maruthi car with knives and swords and damaged the car. PW.1 ran out of the car due to fear and thereafter A1, A2 and A5 robbed the bag containing gold ornaments, silver articles and cash from the Maruthi car of PW.1 and fled away. It is further alleged that A1 to A5 met at Jahangirabad and proceeded to Basawakalyan for disposal of robbed property with the help of Jaleel and got melted the gold jewellary with Sekhar Pon Singh Rathod and converted into ingots and Sekhar Pon Singh Rathod purchased 15 tolas gold ingots pieces for Rs.85,000/- and on his advise the accused proceeded to Sholapur and sold 190 grams of gold to Kumar Bhel Singh Chowhan for Rs.1.15 lakh. It is further alleged that in the meanwhile disputes arose among the accused in sharing the amounts and A5 was murdered by A1 to A3 within the limits of Murum Police Station and A1 to A3 were arrested by the police Murum and one gold chain was seized from A2. After completion of investigation, charge sheet was filed for the offence punishable under Sections 395 and 427 IPC. The accused 1 to 3 pleaded not guilty to the charges framed against them. 6. In support of their case, the prosecution examined PWs.1 to 10 and marked Exs.P.1 to P.19 and MOs1 to 15. No oral and documentary evidence was adduced by the accused. 7. The trial Court framed the following points for consideration: 1. Whether the prosecution established that A1 to A3 along with two others committed dacoity and taken away the booty belongs to complainant as alleged? 2. Whether the prosecution proved the guilt of the accused for the charge under Section 395 IPC? 3. Whether the prosecution proved the guilt of the accused for the charge under Section 427 IC? 4. To what result? 8. On a consideration of evidence available on record, the learned Sessions Judge acquitted A1 to A3 of the offence under Section 395 IPC, but however convicted them for the said offence under Section 392 IPC and also acquitted A3 of the offence under Section 427 IPC while convicting A1 and A2 for the said offence. The appellant/A3 was sentenced to undergo rigorous imprisonment for seven years of the offence under Section 392 IPC. Aggrieved by the same, A3 preferred the present appeal. 9. PW.1 is the complainant - victim, who was robbed of the jewels and cash on the midnight of 4/5.05.2005 while he was returning home from his shop in his Maruthi car. The main contention raised by the appellant/A3 is that as it was night time, there was no possibility for PW.1 to identify the culprits in the darkness. It is to be noted that even in the complaint – Ex.P.1, PW.1 stated that immediately after occurrence he has given descriptive particulars of the accused and he can identify the culprits. It is also in the evidence of PW.1 that the accused stopped his car and threatened him with weapons and he left the car and went aside and the accused robbed the bag containing gold and silver articles from his car. It has also come on record that streetlights were burning at the scene of offence and PW.1 claims to have noted the accused under the glow of the streetlights. It is not as though the offence happened in a fraction of second and the accused were at the scene momentarily. Having regard to the nature of the offence and the manner in which it was committed, the accused must have spent considerable time at the scene of offence for completion of the offence, which comprised actual stopping of the car, threatening of PW.1 with consequences and breaking open the glass of the car and taking away the bag containing gold, silver and cash. Thus, PW.1 had sufficient time and opportunity to witness the offence and note the salient features of the culprits, so as to remember the same and identify the culprits on a later date. 10. Apart from the undiscredited testimony regarding the identity of the appellant-A3 as one of the offenders, the other circumstance relied upon by the prosecution is recovery of gold ring from the house of A3, pursuant to the confessional statement - Ex.P.7 of A3. PW.10 – Assistant Police Inspector, Murrum Police Station of Osmanabad District deposed that while investigating Crime No.100 of 2005, one Shaik Saleem was murdered (A5 in the present case). He arrested A1 to A3. One of them confessed to the commission of the present offence at Hyderabad and also sold gold items to PW.4. It is also in the evidence of PW.10 that he also recorded the confessional statement of A3 in the presence of two panchas on 28.06.2005 and A3 led them to Sholapur and took them to the shop of PW.4 where MO8 and MO9 gold items were seized from the possession of PW.4, which were stated to have been shown to PW4 by A3. PW.6 is one of the mediators for the recovery of MO8 and MO9 from PW.4 at the instance of A3 and he testified in corroboration to the version of PW.10 regarding the recovery of MOs 8 and 9 pursuant to the confessional statement of A3 in Ex.P.7. PW.6 was also a panch for recording of the confessional statement of A3, in pursuance of which MO8 and MO9 were recovered. PW.4 also testified in corroboration to the prosecution case to the effect that he purchased MO8 and MO9 from A3. When PW.3 telephoned to him and asked to purchase the gold, subsequently the police came with A3 and seized those items. Thus, the recovery of MO8 and MO9 at the instance of A3 and pursuant to the confessional statement of A3, would amply establish the case of prosecution that A3 was also involved in the offence of robbery committed against PW.1. There is absolutely no reason as to why the Murrum police, who are of a different State of Maharastra would falsely implicate A3 in the present case pertaining to the offence that took place at Hyderabad. The trial Court has rightly placed reliance on the testimony of PW.10 – Assistant Police Inspector, who investigated Crime No.100 of 2005 and during the course of investigation, A1 to A4 were arrested and also on the evidence of PW.3 and PW.4, who were totally strangers and residents of Maharastra and in no way connected with PW.1. The testimony of PWs3, 4, 6 and 10, who are independent witnesses is therefore, entitled for acceptance. 11. PW.9 – the investigating officer in the present case testified that after taking A3 into custody, he recovered MO1- gold ring in the presence of panchas PW5 and another. It is in the evidence of PW.5 that the confessional statement of A3 was recorded in his presence and A3 took them to the house at Jahangirabad of Hyderabad and produced one gold ring and the same was seized under Ex.P.6. Thus, PW.5, who is also an independent witness supported the prosecution case regarding recovery of the ring pursuant to the confessional statement of A3. The factum of recovery of gold items from the house of A3 at his instance, which are duly proved by adducing necessary evidence supports the case of the prosecution regarding the involvement of A3 in the offence. Apart from PW.1 – the victim identifying the appellant A3 as one of the offenders, the trial Court on proper appreciation of evidence available on record accepted the prosecution version that A1 to A3 along with another committed the offence of robbery against PW.1 and rightly convicted them for the offence under Section 392 IPC instead of 395 IPC. In view of the evidence available on record duly establishing the incriminating circumstances alleged against the appellant-A3 regarding his involvement in the alleged offence, the conviction of appellant/A3 for the offence under Section 392 IPC is not liable to be interfered with. 12. Regarding the sentence also the trial Court imposed a sentence of rigorous imprisonment for seven years against the appellant/A3 as also against A1 and A2 for the offence under Section 392 IPC. Having regard to the gravity of the nature of offence alleged and the manner in which it was perpetrated in accordance with a plan hatched by them, it is held that the sentence of rigorous imprisonment for seven years imposed by the trial Court is neither excessive nor unreasonable and on the other hand, the same is perfectly justified. Accordingly, the conviction of the appellant/A3 for the offence punishable under Section 392 IPC and sentence of rigorous imprisonment for seven years imposed by the trial Court, are confirmed. 13. In the result, the criminal appeal is dismissed. ______________________ G.V.SEETHAPATHY,J Dated:13.08.2009 kvrm