THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.127 of 2005 Date:13th April, 2011 1.Manepalli Suresh @ Chinna, S/o.Narayana, 2.Kanala Subba Rao S/o.Venkateswarlu …Appellants/A3 & A4 v. State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.127 of 2005 JUDGMENT: This Criminal Appeal is directed against the judgment, dated 18.01.2005, passed in Sessions Case No.335 of 2003 on the file of the Metropolitan Sessions Judge, Vijayawada, whereby and whereunder the learned Metropolitan Sessions Judge found A2 Seelam Srinviasa Rao @ Vasu, A3 Manepalli Suresh @ Chinna and A4 Kanala Subba Rao guilty for the offence under Section 411 IPC and convicted them accordingly and sentenced each of them to suffer rigorous imprisonment for a period of six months. 2. Prosecution case in brief is: PW.2 Borisetti Subba Rao and PW.3 Borisetty Vijayalakshmi are husband and wife. On 18.02.1994 PW.2 Subba Rao left home in connection with his business. His wife- Pw.3 Vijayalakshmi and his daughter Borisetti Sailaja (LW.3) were at home on that day. At about 12.00 noon, four persons entered into the house on the pretext of taking meter reading. After entering into the house, they threatened PW.3 and her daughter Borisetti Sailaja (LW.3) and put them under fear and robbed cash of Rs.8,000/- and relieved gold ornaments from their persons. At about 1.00 P.M. Pw.2 Subba Rao received information from his daughter Borisetti Sailaja (LW.3) over phone and rushed to his house. After coming to know of the incident from his wife-PW.3 Vijayalakshmi and his daughter Borisetti Sailaja (LW.3), he presented Ex.P2 report before the Station House Officer, Satyanarayanapuram Police Station, Vijayawada. PW.4 V.Venkateswara Rao, S.I. of Police, Satyanarayanapuram P.S., received the report and registered a case in Crime No.38 of 1994 for the offence under Section 392 I.P.C. and issued Ex.P4 FIR. He arrested A5 Venkata Suresh at Sivalayam Street, Vijayawada, on 17.09.1995 and recovered MO.18 gold ring under the cover of Ex.P6 panchanama. He conducted property identification proceeding, dated 18.09.1995 wherein PW.2 identified MO.18 gold ring as that of him. Ex.P5 is the property identification proceeding. Pw.6 S.Surya Rao, Inspector of Police, CCS II, Vijayawada, took-up investigation, inspected the scene of offence, and recorded the statement of PW.2 Subba Rao. Ex.P8 is the scene of offence panchanama and Ex.P9 is the rough sketch of the scene of offence. During the course of observation of the scene, he seized plastic wire, which has been exhibited as MO.19. He examined PW.3 Vijayalakshmi and her daughter Borisetti Sailaja (LW.3) and recorded their statements. He sent PW.3 Vijayalakshmi and Borisetti Sailaja (LW.3) to government hospital for treatment. LW.7 Dr.K.Mohana Rao, Medical Officer, University General Hospital, Vijayawada, examined PW 3 Vijayalakshmi and Borisetti Sailaja (LW.3) and issued Exs.P10 and P.11 wound certificates. PW.2 Subba Rao presented 2nd report on 01.03.1994, which has been exhibited as Ex.P3. Pw.5 L.Vijaya Kumar, Inspector of Police, AGS, Vijayawada City, arrested A1 to A4 and recovered MOs.1 to 10 in pursuance of the disclosure statement of A1; MO.11 in pursuance of the disclosure statement of A2; MO.12 in pursuance of the disclosure statement of A3; and MO.13 in pursuance of the disclosure statement of A4. Ex.P7 is the panchanama with regard to the seizure of MOs.1 to 16. After completing the investigation, a charge-sheet came to be presented before III Metropolitan Magistrate, Vijayawada. The learned Magistrate took the charge-sheet on file as CC.No.86 of 1994 and subsequently, PW.5 L.Vijaya Kumar, Inspector of Police, arrested A5 and filed additional charge-sheet on the file of III Metropolitan Magistrate, Vijayawada. 3. The learned Metropolitan Magistrate took the additional charge- sheet on file as P.R.C.No.16 of 1997. Pending committal of the case, A5 died and case against him stood abated. Learned Metropolitan Magistrate committed the case against A1 to A4 to the Metropolitan Sessions Division, Vijayawada, as the offence under Section 395 IPC is exclusively triable by a Court of Session. 4. The learned Metropolitan Sessions Judge, Vijayawada, took the case on file as Sessions case No.335 of 2003. The learned Metropolitan Sessions Judge, on hearing the prosecution and A1 to A4, framed a charge under Section 395 IPC, read over and explained the same to the accused, for which the accused pleaded not guilty and claimed to be tried. 5. To bring home the guilt of the accused for the offence under Section 395 IPC, prosecution examined 6 witnesses as PWs.1 to 6 and proved 12 documents as Exs.P1 to P12 and marked 19 material objects as MOs.1 to 19. On behalf of the accused, neither oral nor documentary evidence was adduced. 6. The learned Metropolitan Sessions Judge, on considering the evidence brought on record and on hearing the prosecution and the accused, found A2 to A4 not guilty for the offence under Section 395 IPC and acquitted them accordingly. However, the learned Metropolitan Sessions Judge, found A2 to A4 guilty for the offence under Section 411 IPC and sentenced each of them to suffer rigorous imprisonment for a period of six months, by judgment, dated 18.01.2005. Hence, this Criminal Appeal by A3 and A4. 7. Heard learned counsel appearing for the appellants/A3 and A4 and learned Additional Public Prosecutor appearing for the respondent/State. 8. Learned counsel appearing for the appellants/A3 and A4 submits that except the evidence of PW.5, there is no other evidence to speak of the confession and recovery of stolen properties from the possession of the appellants/A3 and A4 and therefore, the appellants/A3 and A4 deserve to be acquitted for the offence under Section 411 I.P.C. 9. Per contra, learned Additional Public Prosecutor appearing for the respondent/State submits that the two panch witnesses for confession and recovery are no more and therefore, they could not be examined during the trial. A further submission has been made that the evidence of PW.5 is cogent and consistent with regard to the recovery of MO.12 from the possession of 1st appellant/A3 and MO.13 from the possession of 2nd appellant/A4 and the said properties have been identified by PW.2 as the stolen properties and in which case, the conviction and sentence of the appellants/A3 and A4 is legal and proper and the same is not liable to be interfered. 10. Though the appellants/A3 and A4 tried for the offence under Section 395 IPC, none of the witnesses examined by the prosecution spoke of their participation in the commission of offence. The only evidence available on record is with regard to recovery of MOs.12 and 13 from the possession of the appellants/A3 and A4. MO.12 and MO.13 have been identified by PW.2 as the stolen properties. PW.5 is the arresting officer. He categorically stated that he recovered MOs.12 and 13 pursuant to the disclosure statement of the appellants/A3 and A4. PW.5 had been subjected to piercing cross-examination and nothing is made out to discard his testimony. Non-examination of the panch witnesses has been properly explained by the prosecution. Therefore, there is no reason to disbelieve the evidence of PW.5. 11. Learned counsel appearing for the appellants/A3 and A4 submits that the 1st appellant/A3 served out the whole of the sentence and consequently he has been released from the jail. With regard to the appellant No.2/A4, he has served sentence of four months and 20 days as on this day. In that view of the matter, I deem it appropriate to reduce the sentence of imprisonment imposed on the 2nd appellant/A4 to the period already undergone by him. 12. In the result, the appeal is dismissed. However, the sentence of imprisonment imposed on appellant No.2/A4 Kanala Subba Rao S/o.Venkateswarlu is reduced from six months to the period already undergone by him for the offence under Section 411 IPC in Sessions Case No.335 of 2003 on the file of Metropolitan Sessions Judge, Vijayawada. The appellant No.2/A4 Kanala Subba Rao S/o.Venkateswarlu is ordered to be set at liberty forthwith, if he is not otherwise required in any other crime. _________________________ B.SESHASAYANA REDDY, J. Date:13th April, 2011. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal No.127 of 2005 Date:13th April, 2011