THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1235 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed in S.C.No.122 of 1999 by the III Additional Metropolitan Sessions Judge, Hyderabad on 30.06.2004. The appellants herein were prosecuted for the oﬀences under Sections under Sections 395 and 362 IPC alleging that on 21.06.1997 at about 11.30 P.M. six (6) unknown persons went to the house of P.W.1 in a white Ambassador car bearing No. AP 9G 737, in which one person i.e. accused No.5 (absconding) was wearing police S.I uniform and 3 others i.e. accused Nos.1, 2 and 5 who were in mufti threatened P.W.1 and forcibly opened the gate and entered inside his house situated at 1st ﬂoor. Accused No.5, who was wearing police uniform, was having revolver on his belt and others having lathies, starting search of P.W.1’s house stating that P.W.1 is doing fake currency business. They ransacked the house and almyrah took one suit case and taken away the following articles (1) 3 children gold rings (2) 4 pairs of gold ear tops (3) 2 gold necklaces (4) One silver belt (5) One silver key chain (6) Black beeds silver chain. (7) 10 pairs of sliver anklets. (8) 8 small silver glasses (9) 22 silver coins (10) Net cash of Rs.10,000/- While leaving the scene of oﬀence, the accused picked up P.W.1 upto Moosapet X Road in a Ambassador Car and removed his ornaments i.e. one gold chain and silver ring from his possession and cash of Rs.9,000/- form his pant pocket and dropped him at Moosapet X Road and asked P.W.1 to pick up the gold, silver ornaments and cash on the next day morning from police control room after showing the bills and went away along with booty. On the complaint of P.W.1, P.W.8 has registered the case in Crime No. 339 of 1997 under Sections 395 and 362 IPC and took up investigation. During the course of investigation, P.W.8 examined P.Ws.1 and 2 and Master Pavan Kumar and recorded their statements and conducted scene of oﬀence Panchanama and drawn the sketch in the presence of P.W.3 and another. Thereafter, the case ﬁle was transferred to C.C.S, Hyderabad for further investigation and P.W.9 took up the investigation and examined M.Murli, P.W.6 and P.W.7 and recorded their statements. On 20.09.1998 on credible information, he along with crime staﬀ of ADR-Team, C.C.S., Hyderabad proceeded to Charminar X Road near Neo Hotel Sangam and found 4 persons under suspicious circumstances were moving on the by line near the hotel. On questioning them, they did not give any satisfactory reply, as such they brought to C.C.S. police station and aﬀected their arrest and thoroughly interrogated them in the presence of P.W.4 and V.Karvas. On interrogation, accused No.1 disclosed about the commission of oﬀence along with other accused and he has given one pair of silver anklets to accused No.2 as his share, one silver anklets to accused No.4 as his share, whereas accused No.5 (absconding) has taken silver coins and one gold chain and cash towards his share. Thereafter, the investigating oﬃcer along with mediators P.W.6 and another gone to the house of accused Nos.1 and 4 and seized the M.O.1 from the house of accused No.2, M.O.2 from the house of accused No.3, M.O.3 from the house of accused No.4 and M.Os.4, 5 and 6 from the house of accused No.1 and at the instance of accused No.1 seized M.Os.7 to 15 from P.W.7. Thereafter, the accused were remanded to judicial custody. P.W.5 has conducted the test identiﬁcation parade of the accused by the witnesses P.Ws.1, 2 and 6 and they identiﬁed accused Nos.1 to 4. After completion of the investigation police ﬁled the charge sheet against the accused for the above said offences. Since accused No.5 was absconding, the case was taken on ﬁle only against accused Nos.1 to 4 by the Magistrate; on committal the learned Metropolitan Sessions Judge has framed the charges under Sections 395 and 362 IPC against accused Nos.1 to 4. They pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.19 and M.Os.1 to 16. On behalf of the accused, Exs.D.1 to D.7 were marked, but no oral evidence was adduced on their behalf. The learned Metropolitan Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused Nos.1 to 4 guilty for the oﬀence under Sections 395 and 362 IPC; convicted and sentenced to undergo rigorous imprisonment for 7 years each and to pay ﬁne of Rs.100/- each in default to pay ﬁne simple imprisonment for 3 months each for the oﬀence under Section 395 IPC. Accused Nos.1 to 4 further sentenced to undergo rigorous imprisonment for 7 years each and to pay ﬁne of Rs.l00/- each in default to pay ﬁne simple imprisonment for three (3) months each for the oﬀence under Section 362 punishable under Section 363 IPC. Aggrieved by the same, the present appeal is ﬁled by the accused therein. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 395 and 362 punishable under Section 363 IPC against the accused Nos.1 to 4 beyond reasonable doubt? P O I N T: During the course of arguments, the appellants’ counsel has reported that accused No.3 is no more. Hence the appeal against accused No.3 is abated. Thus, the appellants are accused Nos.1, 2 and 4. The appellants’ counsel has pleaded that the appellants are not the persons, who are alleged to have been involved in the oﬀence as alleged by the prosecution. He further pleaded that the descriptive particulars of the accused were not given by P.Ws.1, 2 and 6, therefore, their identifying the accused in the test identiﬁcation parade conducted after 1 ½ years cannot be believed and the identiﬁcation parade conducted by P.W.5 was not in accordance with criminal rules of practice, as such the accused are entitled for beneﬁt of doubt. He further pleaded that the car alleged to have been used in the commission of oﬀence as stated by P.W.1 is diﬀerent from the car seized by the police during the course of investigation from P.W.6. He further pleaded that the recovery of M.Os.1 to 15 at the instance of accused Nos.1 to 4 is not established as the mediator P.W.4 could not able to say from where the accused have produced the property before the police and that there are no speciﬁc identiﬁcation marks on the property seized by the police to establish that the same belongs to P.Ws.1 and 2 and that the material objects alleged to have been recovered are new ones, as such M.Os.1 to 15 are planted by the police for the purpose of this case and they do not belong to P.Ws.1 and 2. The Additional Public Prosecutor on the other hand has pleaded that the evidence of P.Ws.1 and 2 clearly establishes about the accused committing the oﬀence in their house and taking gold and silver ornaments from them and they have identiﬁed all the accused in the test identiﬁcation parade conducted by P.W.5. P.W.5 has conducted the said test identiﬁcation parade as per the procedure prescribed under Criminal Rules of Practice and the stole property belongs to P.Ws.1 and 2 were recovered at the instance of accused Nos.1 to 4 as per their confession in the presence of P.W.4 under Exs.P.8, P.9, P.10, P.11 and P.14. He further pleaded that even though there is some discrepancy with regard to registration number of car seized from P.W.6 under Ex.P.12, the same is not fatal to the case of the prosecution. According to the prosecution on 21.06.1997 at about 11.30 P.M., accused Nos.1 to 5 came to the house of P.W.1, among them accused No.5 wearing the police uniform and others are in mufti and they are under the guise of searching the house of P.W.1, on the allegation that he is doing fake currency business, have taken away the gold and silver ornaments and P.W.1 in a car along with them to some distance and left him on the way at Moosapet X Road by removing the gold chain, silver ring and cash of Rs.9,000/-, which are in his possession. Subsequently, accused Nos.1 to 4 arrested on 20.09.1998 and as per their confession, M.Os.1 to 15 were recovered at their instance and the accused were identiﬁed by P.Ws.1, 2 and 6 in the test identiﬁcation parade conducted by P.W.5. P.W.1, who is the complainant, has narrated about the incident by stating that 21.06.1997 he was in his house in the evening hours as it was a holiday. On that day night, at about 11.30 P.M. while he was viewing T.V. programme and his house portion is situated in 1st ﬂoor of the building. At that time he heard noise from his house door and when he opened the doors, he saw Pavan Kumar present in front of his house and he asked him as to why he came in that night, then he stated that somebody wanted him and they were waiting outside the house. Then P.W.1 immediately went there and saw 5 persons outside of a car and one person was sitting in the car, and one among them was having police uniform. Then, P.W.1 asked them as to why they were waiting at the gate of his house and what they want from him. Then the person, who was in police uniform stated that there are certain complaints against him, that is why they came there. P.W.1 asked them to search his house as they are alleging that he was indulged in fake currency business. Three members out of them came to his house portion at 1st ﬂoor and asked his name and stated they were waiting for him since 2 days. Out of the said 3 persons, one person was waiting at the door of his house and other two persons came inside his house portion and directed him to open his almyrah in the house. The person, who was in police uniform, asked him to open the almyrah. They directed him to collect the valuable gold and silver items from the almyrah, then he brought out all the silver and gold items from the almyrah and kept the same on the cot in the room and they also asked him to collect a suit case by pointing towards it. He brought the suit case and they opened the suit case and thrown away the clothes from that suit case and asked him to put silver and gold ornaments and cash in the suit case and asked him to take the suit case and follow them. Then his wife interfered and asked as to why her husband was being taken along with them. They stated that they relieve P.W.1 within 15 minutes after going to the police control room. He can identify the assailants, who came to his house and who participated in the crime, if they are shown to him. He can recognize accused Nos.2 and 4, who are present in the court hall, that they are participated in the crime in their house. Accused No.2 stand still and was guarding at the entrance of his house. Accused No.4 was standing near the car. The person, who was in police uniform came to their house on that day and who participated in the crime, was not available in the court. Accused Nos.2, 4 and other assailants made him to sit in the car along with the suitcase, he requested them to relieve him and they snatched the gold chain, silver ring and cash of Rs.9,000/- and left him near crossroads just near kukatpally bus depot, they detained his suitcase and asked him to bring Rs.10,000/- to control room as and when he received the phone call from them. Then, he called his brother-in-law by name Ramswaroop and he came there on his scooter, and both of them came to their house. Thereafter, he reported the mater at the outpost of Borabanda, orally. On his oral complaint, outpost police came to his house and enquired about the occurrence and phoned to S.R.Nagar police station from his telephone. Then S.R.Nagar police came to his house and took him to S.R.Nagar police station for lodging the complaint. He lodged Ex.P.1 complaint. He can identify the property, if shown to him. He can also identify the Ambassador car, in which he was taken by the assailants on that night, bearing No.AP 9G 737. He identiﬁed M.Os.1 to 15 gold and silver ornaments and M.O.16 is the car. He also stated that the said car is having diﬀerent registration number. After one year of the oﬀence, he was called through summons from Court to attend in jail premises. There he identiﬁed accused Nos.2 and 4 in test identification parade. P.W.2, who is the wife of P.W.1, has also supported the version of P.W.1 with regard to taking away the gold and silver ornaments from their house by the culprits. She also stated that she can identify the persons, who have committed the oﬀence in their presence. She also identiﬁed M.Os.1 to 15 gold and silver ornaments belong to them, which were committed theft by the accused. P.W.5, the then XXIII Metropolitan Magistrate has conducted the test identiﬁcation parade of the accused on 17.10.1998 on the requisition given by the police. According to him, during the course of test identiﬁcation parade, P.W.1 identiﬁed accused Nos.2 and 4. P.W.2 identiﬁed accused NO.2. P.W.6 identiﬁed accused Nos.2 and 4 and accused No.3 was not identiﬁed by any of the witnesses. Again P.W.5 has conducted test identiﬁcation parade again on18.12.1998, in which P.Ws.1, 2 and 6 identified accused No.1. The contention of the appellants’ counsel is that the incident has taken place on 21.06.1997, accused were apprehended on 20.09.1998, test identiﬁcation parade conducted on 17.10.1998 and 18.12.1998, as such the identiﬁcation of the accused cannot be believed as none of the witnesses have not given the descriptive particulars of the accused in their statements before the police or before the Court. Admittedly, P.Ws.1 and 2 have not given the descriptive particulars of the accused in the test identiﬁcation parade conducted by P.W.5. They have categorically stated that they can identify the persons, who came to their house and P.W.6 stated that he can identify the persons, who came in his car and he has not given the descriptive particulars of the persons. Simply because P.Ws.1,2 and 6 have not given the descriptive particulars of the accused in their statements before the police, their identiﬁcation of the accused after 1 ½ years cannot be disbelieved as P.Ws.1 and 2 are victims in the hands of the accused and the accused have traveled in the car of P.W.6 on that day. Therefore, the identiﬁcation of the accused by P.Ws.1,2 and 6 can be believed. The appellants’ counsel pleaded that P.W.5 has not conducted the test identiﬁcation proceedings in accordance with the procedure prescribed in Rule 54 of Criminal Rules of Practice. P.W.5 mentioned the details of procedure followed by him while conducting the test identiﬁcation parade in Exs.P.16 and P.18, but the appellants’ counsel could not point out what is the procedure, which was not followed by P.W.5. The procedure followed by P.W.5 is in accordance with Civil Rules of Practice. Thus, P.W.5 has not violated any of the procedure in conducting the test identiﬁcation parade of the accused. Therefore, the prosecution could able to establish the identify of accused Nos.1, 2 and 4. According to the investigating oﬃcer, P.W.9, he took up the investigation in this case on 20.09.1998 from S.R.Nagar police and on the information himself, Inspector of police and sub-inspectors of police, CCS proceeded to Charminar crossroads, near Sangam hotel and found 4 persons under suspicious circumstances and they were taken into custody and enquired about their identity and other descriptive particulars. They brought accused Nos.1 to 4 to CCS , Hyderabad and summoned two mediators i.e. P.W.4 and Karvas and in their presence they interrogated the accused and recorded their confessional statements. In pursuance of their confessional statements, they recovered M.Os.1 to 15 in the presence of P.W.4 and another under Exs.P.8 to P.11 and P.14. The appellants’ counsel has pleaded that P.W.4 and another mediator taken to the house of accused for recovery of gold and silver articles, but none of the mediators could not able to say from where the accused have produced the property before the police, as such the recovery of property at the instance of accused cannot be belived. P.W.4, who is the mediator for the above said confessional statement and recovery of property, also supported the version of P.W.9. He has categorically stated about the recovery of M.O.1 at the instance of accused No.2, M.O.2 at the instance of accused NO.3, M.O.4 at the instance of accused No.4, M.Os.4,5 and 6 at the instance of accused No.1 and the recovery of M.Os.7 to 15 at the instance of accused No.1 from P.W.7. In the cross-examination P.W.4 has stated that he did not see from where accused No.2 picked up stolen property from his house and handed over to police. Similarly he has stated that he cannot say from where accused No.4 picked up the stolen articles from his hut and handed over to police. The said admissions of P.W.4 are not fatal to the case of the prosecution as the stolen property was recovered at the instance of the accused. P.W.7, who has purchased the property form accused No.1, has also categorically stated that in June, 1997 accused No.1 came to his shop and produced 2 gold necklaces, 4 pairs of gold ear tops, 3 gold rings and oﬀered them to sell them as he is in need of money. At that time, he paid Rs.18,000/- to accused No.1. M.Os.7 to 15 are the said gold ornaments, which are sold to him by accused NO.1 on that day. He was keeping M.Os.7 to 15 in his shop to sell them for higher rate. The appellants’ counsel has pleaded that even though P.W.7 has purchased the said items in the month of June, 1997, no explanation is forthcoming as to why he kept the same with him till 20.09.1998 i.e. more than one year three months without dispose of the same. As admitted by P.W.7 he is not dealing in selling and purchasing gold ornaments, but he is doing silver melting work. He might have kept the gold ornaments with him hoping that accused No.1 will take back the same by repaying the amount. Since M.Os.7 to 15 were recovered from P.W.7, the non disposal of the same for 1 year 3 months is not fatal to the case of the prosecution as they being the stolen property. Therefore, the recovery of M.Os.1 to 15 at the instance of accused Nos.1 to 4 was established by the prosecution. The appellants’ counsel has pleaded that some of the gold ornaments marked as material objects are new and when there are no speciﬁc identiﬁcation marks to show that they belong to P.Ws.1 and 2, it cannot be said that the said property was lost by P.Ws.1 and 2. P.W.1 in the cross-examination has admitted that there are no descriptive particulars or identiﬁcation marks on the articles lost by them to show that they belong to them. He categorically stated that the gold rings never used by his children and the gold neck chain appears to be new as it was not used by him. P.W.2 also identiﬁed M.Os.1 to 15 as belong to them. Since M.Os.1 to 15 belong to P.Ws.1 and 2 and their children, even though there is no speciﬁc identiﬁcation marks on the property, they can identify the same. Admittedly, P.W.1 has lodged a complaint with regard to culprits taking away M.Os.1 to 15 from his house. Thus the property lost by P.W.1 was recovered at the instance of accused Nos.1 to 4. The appellants’ counsel has pleaded that M.Os.1 to 15 do not bear the Panch slips to show that they were seized by the police in the presence of P.W.4 and another. As admitted by P.W.1 in the cross-examination that the material objects were deposited in Magistrate’s court and on the date of deposit, he took return of his properties as interim custody on the directions of Court. Therefore, M.Os.1 to 15 were given interim custody to P.W.1 by the Court. Since the material objects are in the custody of P.W.1, the Panchanama slips might have been missing from the said property. Simply because the said property does not contain the Panchanama slips and when P.Ws.4 and 9 have speciﬁcally identiﬁed that the said property was seized at the instance of accused Nos.1 to 4 and P.Ws.1 and 2 identiﬁed the property as belongs to them, it cannot be said that M.Os.1 to 15 are not the property lost by P.Ws.1 and 2 and not recovered from the possession of accused Nos.1 to 4. According to the prosecution, the accused came to the house of P.W.1 in the car bearing registration No.AP 9G 737, but the car seized and marked as M.O.16 bearing registration No.AHT 737. The appellants’ counsel pleaded that the prosecution has failed to establish the seized car was used by the accused in the commission of offence. P.W.1 has stated in his chief-examination that the accused came to his house in a ambassador car and he can identify the same, in which he was taken by the assailants on that day and it bears the registration No.AP 9G 737 and M.O.16 white coloured Ambassador car registration No.AHT 737. He admitted that the seized car bearing diﬀerent registration number from that of the car used by the accused at the time of commission of offence. The Investigating oﬃcer, has stated that as per the confession statement, they proceeded to Mallikarjuna Nagar, Amberpet and traced the driver of Ambassador car viz., Pabba Sreenu and recovered one Ambassador car bearing No.AHT 737, and M.O.16 is the Ambassador car seized in the presence of mediators. P.W.6, who is the driver of the said car, has also stated that in the year 1997, he was working as driver of the car belongs to one Mallesh. The registration number of the said car is AHT 737 Ambassador car and it is of white colour. He has speciﬁcally stated that the accused has taken the said car on hire and police seized the said car from him at the instance of accused No.1. Thus, the car that was seized by P.W.9 is bearing diﬀerent registration number than the registration number stated by P.W.1, which was used by the accused in the commission of oﬀence. Even though, there is discrepancy with regard to registration number of the vehicle used by the accused in the commission of oﬀence, it is not fatal to the case of the prosecution in view of the recovery of property from the possession of accused at their instance. Therefore, the prosecution could able to establish the charge under Section 395 IPC against the accused beyond reasonable doubt. According to the prosecution, the accused took P.W.1 along with them by making a false representation that one of them is a police oﬃcer and after leaving him near Kukatpallyi bus depot, asked him to come and collect the articles by produced the receipts. The said fact was not established from the evidence of P.Ws.1 and 2. The learned Additional Metropolitan Sessions Judge found the accused guilty for the charge under Section 362 punishable under Section 363 IPC. Section 362 IPC deals with abduction. As per the said section, whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. Section 363 IPC deals with punishment for kidnapping. The Additional Metropolitan Sessions Judge, convicted the accused for the oﬀence under