THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 927 of 2004 JUDGMENT: 1. This Criminal Appeal, under Section 374 (2) Cr.P.C., is directed against the judgment dated 05.04.2004 in Calendar Case No.3 of 2002 on the file of the II Additional Sessions Judge, Warangal, whereunder and whereby the appellant/A.2 was convicted of the offence under Section 392 I.P.C. and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for three months. 2. The brief facts that are necessary for disposal of this Criminal Appeal may be stated as follows: On 26.1.1996 at about 8.30 PM, two unknown culprits armed with knives, went to the house of P.W.1, knocked the doors and when P.W.2 opened the doors, they gained entry in the house and forcibly snatched the valuable ornaments from the person of P.Ws.2 and 3, who are daughter-in-law and wife respectively, of P.W.1, and also took away cash of Rs.5,030/- by threatening with dire consequences at the point of knives. On Ex.P1-complaint lodged by P.W.1, the present case was registered, and after completion of investigation, police laid the charge sheet against A.1 and A.2. 3. As A.1 was absconding, case against him was split up. 4. The trial Court framed a charge for the offence under Section 392 I.P.C. against the appellant/A.2, and when the charge was read over and explained to him in telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws. 1 to 14 and got marked Exs.P1 to P10, besides case properties M.Os. 1 and 2. 6. After closure of the prosecution side evidence, the appellant/A.2 was examined under Section 313 Cr.P.C. to explain the incriminating material appearing against him in the evidence of prosecution witnesses. He denied the same. No oral or documentary evidence was adduced on his behalf. 7. The trial Court, upon considering the oral and documentary evidence, found the appellant/A.2 guilty of the offence punishable under Section 392 I.P.C., accordingly convicted and sentenced as stated supra. Challenging the same, the present appeal is preferred by him. 8. Now the point for determination is whether the prosecution established its case against the appellant/A.2 for the offence punishable under Section 392 I.P.C. and whether the judgment of the trial court is correct, legal and proper ? 9. The learned counsel for the appellant contended that, police have no power to conduct test identification parade for identification of the property; that the descriptive particulars of the properties have not been given in the earliest report; that, there is no evidence to show that the appellant knew or reason to believe that the properties are stolen properties; that, except the interested testimony of P.W.10-police officer, there is no evidence with regard to recovery. Hence, she prayed to set aside the conviction and sentence recorded against the appellant. 10. On the other hand, the learned counsel appearing for the Public Prosecutor contended that, M.Os. 1 and 2 were identified by P.Ws. 1 to 3; though identification parade in respect of the properties have to be conducted in the presence of competent Magistrate, at the same time, P.Ws. 1 to 3 identified their properties, and there is no other reason to disbelieve their evidence. She further contended that, the appellant has not claimed properties as his own and therefore an offence punishable under Section 411 I.P.C. is made out. Hence, she prays to dismiss the Criminal Appeal. 11. The incident is alleged to have taken place on 26.1.1996 at about 8.30 PM. Two unknown persons committed theft of M.Os. 1 and 2 from the person of P.Ws. 2 and 3. The appellant/A.2 was arrested on 10.3.1998 along with other persons, in connection with other case. In pursuance of his confessional statement, M.Os. 1 and 2- case properties relating to this case, were seized from his possession under Ex.P5-admissible portion of the recovery panchanama. Identity of the appellant as one of the assailants who committed theft of cash and gold ornaments from the house of P.Ws. 1 to 3, is disbelieved by the trial Court. When there is no evidence to show that the appellant/A.2 participated in commission of the robbery, he cannot be convicted of the offence punishable under Section 392 I.P.C. Therefore, the trial court ought to have acquitted the appellant/A.2 of the offence punishable under Section 392 I.P.C. 12. No doubt, under Rule 35 of the Criminal Rules of Practice and Circular Orders, 1990, identification parade of the properties has to be held in the Court of the Magistrate where the properties are lodged. Admittedly, in this case, police conducted identification parade in the police station in the presence of P.W.9. Though that procedure is not as contemplated under the Criminal Rules of Practice, at the same time, it can be said to be an irregularity or illegality. There cannot be any dispute that the object of conducting of test identification parade in respect of the properties during the course of investigation is to identify the properties by the victims and to test their memory with regard to identity of the property. But, the substantive evidence of identification of the properties is the evidence given by the victims in the court. P.Ws. 1 to 3 categorically stated that M.Os. 1 and 2 belong to them. 13. No doubt, the earliest report Ex.P1 does not disclose about the descriptive particulars of the properties M.Os. 1 and 2. But, at the same time, since they are wearing ornaments, it is easy for the persons like P.Ws. 2 and 3 to identify the ornaments which were used by them daily. Therefore, there is nothing unusual or abnormal in the evidence of P.Ws. 2 and 3 to identify M.Os. 1 and 2. It is not elicited from their evidence as to how they could be in a position to identify P.Ws. 1 and 2 after lapse of 2 ½ years. Therefore, identification of M.Os. 1 and 2 by P.Ws. 2 and 3 for the first time in the court, cannot be said to be improbable or unnatural. The evidence of P.W.10 shows that, in pursuance of Ex.P5-confessional statement (admissible portion), M.Os. 1 and 2 were seized from the house of the appellant/A.2. It is not the case of the appellant/A.2 that he is the owner of the property or that his wife was having M.Os. 1 and 2-ear studs and gantapusthelu. When the prosecution established that certain stolen property was recovered from the possession of the appellant/A.2, it can be said that he was having knowledge that they are either theft property or stolen property. In such a case, presumption under Section 114 (a) of the Indian Evidence Act, 1872 can be drawn. If it is drawn, it can be presumed that the appellant/A.2 is either a thief or receiver of stolen property. So, the appellant/A.2 ought to have been convicted for the offence under Section 411 I.P.C., as his participation in commission of the offence is disbelieved. 14. In the result, the conviction and sentence recorded against the appellant/A.2 in the judgment dated 05.04.2004 in Calendar Case No. 3 of 2002 on the file of the II Additional Sessions Judge, Warangal of the offence punishable under Section 392 I.P.C. are set aside. The appellant/A.2 is found guilty of the offence punishable under Section 411 I.P.C., accordingly convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months. The period of remand underwent by the appellant/A.2 during investigation, trial and after conviction, shall be given set off under Section 428 Cr.P.C. 15. With the above modification, the Criminal Appeal is dismissed. ------------------- K.C.Bhanu, J. 12.11.2009 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 927 of 2004 Date: 12.11.2009 Between: Muthu Raju …Appellant/A.2 And State of A.P. rep. by Public Prosecutor, High Court of A.P. …Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 927 of 2004 12.11.2009