IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL Nos.2556 of 2004 & 84 of 2005 DATE: 19.09.2011 CRIMINAL APPEAL No.2556 of 2004 Between: Byagari Krishnaiah @ Krishna. …… Petitioner And The State of Andhra Pradesh represented by its Public Prosecutor, High Court of A.P., Hyderabad. ….. Respondents CRIMINAL APPEAL No.84 of 2005 Between: Kanchimi Yadaiah @ Yadagiri. …… Petitioner And The State of Andhra Pradesh represented by its Public Prosecutor, High Court of A.P., Hyderabad. ….. Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL Nos.2556 of 2004 & 84 of 2005 COMMON JUDGMENT: These two appeals are filed by the accused 1 and 4/A.1 and A.4 respectively who were convicted by the lower Court of the offence under Section 395 I.P.C. and were sentenced to rigorous imprisonment of five years and fine of Rs.100/- each. Questioning the same, A.1 and A.4 filed these two appeals separately. 2. It is alleged that on the night of 4/5-1-1999 at about 1 A.M., five persons including A.1 and A.4 participated in dacoity armed with fire arms in the house of P.W.2 at Chowdapur village of Kulkacherla Mandal, Ranga Reddy District and robbed huge quantity of gold items and cash, all worth about Rs.1,73,000/- at Gun point of SBML Guns and one Toy pistol and that subsequently, on 10.10.1999, A.1 and A.4 along with others were arrested and some of the stolen properties were seized from their possession at their instance while they were in the hut of A.2. Plea of A.1 and A.4 is one of total denial and not guilty. After trial, A.1 and A.4 were found guilty under Section 395 I.P.C. 3. In these appeals, it is contended by the appellants’ counsel that as per Ex.P.1 report given by P.W.2 to the police after the offence, the offence was committed by unknown persons and that identification parade of the accused was conducted about 10 months after the offence and that therefore there is no possibility of remembering the culprits by the witnesses and that identification of the accused in this case cannot have any weight. It is further contended by the appellants’ counsel that P.Ws.6 and 8 in whose presence stolen articles are stated to have been seized from possession of A.1 and A.4, are interested witnesses inasmuch as P.W.8 is Viyyanka of P.W.2 and P.W.6 is a friend of P.W.8 and that therefore no reliance can be placed on the prosecution evidence relating to recovery of stolen articles from possession of A.1 and A.4. 4. P.W.7 is the then Judicial Magistrate of the First Class, Tandur in Ranga Reddy District who conducted Test Identification parade for A.1, A.4 and 2 other suspects in Central prison, Chenchalguda, Hyderabad in the presence of P.Ws.1 and 2 under the cover of Ex.P.7 Identification Proceedings. P.W.2 expressed his inability to identify any culprits on the ground that he has no good eye sight as he was suffering from cataract. So P.W.2’s services were not taken by P.W.7 to identify the suspects. 5. During the course of identification parade, P.W.1 identified A.1 only and could not identify A.4. Non-identification of A.4 as one of the culprits who participated in this offence of P.W.2, may be due to the reason suggested by the appellants’ counsel namely lapse of more than 10 months period from the date of offence. P.W.1 was genuine in not identifying A.4 but identifying only A.1 in the Test Identification parade conducted by the Magistrate. P.W.1 in cross examination denied the accused being shown to him by the Inspector of police after their arrest in the police station. P.W.1 as well as the Investigating Officer P.W.12 denied Vartha Daily News paper publishing photos of the accused after their arrest. There is no basis on record to show that A.1 was shown to P.W.1 after his arrest and before Test Identification parade. Therefore, I have no hesitation to accept identification of A.1 by P.W.1 in the presence of Magistrate P.W.7 in the Test Identification parade conducted in Central Prison, Chenchalguda. P.W.1 gave details of the incident which took place in his house on that night. He says that the culprits were present in the house for considerable time by entering into the ground floor, reaching the first floor, getting iron box and almyrah opened and robbing valuables. Since the culprits spent considerable time at the scene of offence, during which period P.W.1 was present throughout, there is every possibility of P.W.1 identifying A.1. If really there was any manipulation in the Test Identification parade, then P.W.2 would not have expressed his inability to identify the culprits and P.W.1 would not have failed to identify A.4 also in the Test Identification parade. I find that Test Identification parade in this case is genuine and reliable. 6. With regard to arrest, statement and recovery are concerned, there is evidence of P.Ws.6,8 and 12. P.W.12 is the then Inspector of Police, Pargi circle who investigated into this offence. It is his evidence that on information on 10.10.1999, he along with other Sub-Inspectors and staff went to hut of Wadde Ramulu (A.2) in the outskirts of Kothapalli village and found A.1 and A.4 along with A.2 and two others and that thereafter, he secured presence of P.Ws.6 and 8 to act as punch witnesses. It is evidence of P.Ws.6 and 8 that when they were going in between Kothapalli and Chowdapur on scooter, the police intercepted them and requested them to act as mediators for which they agreed. Though P.W.8 is Viyyanka of P.W.2, who is the first informant to police as per Ex.P.1, P.W.6 has no relationship with the prosecution party. Though he is friend of PW.8, he has no direct connection with the prosecution party. It is consistent evidence of P.Ws.6, 8 and 12 that after giving the alleged confessional statement (which is inadmissible in evidence) A.1 produced M.Os.5 to 10 gold ornaments apart from M.O.11 Toy pistol and he was arrested by P.W.2 under the cover of Ex.P.2 seizure panchnama in the presence of P.Ws.6 and 8. It is their further evidence that after A.4 gave alleged confessional statement (which is inadmissible in evidence) M.Os.27 to 29 gold ornaments were seized from possession of A.4 under the cover of Ex.P.3 seizure punchnama in the presence of P.Ws.6 and 8. It is contended by the appellants’ counsel that there is improvement in the property lost from Ex.P.1 First Information Report to the statement given to the police under Section 161 Cr.P.C. It is but natural that after verification of all the properties, details of articles would be supplied to the police during investigation. That does not mean that the entire prosecution story is false. At any rate, P.W.1 identified M.Os.5 to 10 (seized from A.1) and M.Os.27 to 29 (seized from A.4) as that of the property lost during the course of this offence. P.W.11 is the then Mandal Executive Magistrate, Pargi Mandal in whose presence identification of the stolen property was made under the cover of Ex.P.9 identification proceedings in which P.W.1 identified the stolen articles in accordance with Rule 35 of the Criminal Rules of Practice. The evidence of P.Ws.1 and 2 and Ex.P.1 establish that M.Os.5 to 10 and M.Os.27 to 29 are part of stolen properties in this dacoity case from their house on the fateful day. Further, evidence of P.Ws.6, 8 and 12 established seizure of M.Os.5 to 10 from possession of A.1 and M.Os.27 to 29 from possession of A.4. In view of illustration (a) of Section 114 of the Evidence Act, the lower Court is justified in coming to the conclusion that A.1 and A.4 participated in the dacoity and shared booty when M.Os.5 to 10 came to be in possession of A.1 and M.Os.27 to 29 came to be in possession of A.4. 7. On scrutiny of the entire material on record, I am of the opinion that the lower Court is justified in law and on facts in finding A.1 and A.4 guilty under Section 395 I.P.C. 8. In the result, both the appeals are dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J September, 19, 2011 Dvs HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL Nos.2556 of 2004 & 84 2005 DATE: 19.09.2011