THE HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.18 of 2001 Date: 13.8.2010 Between: Dasari Ashok and others. …………Appellants/accused A2, A3, A4 & A7. And The State of A.P. rep by Circle Inspector of Police, Jammikunta P.S., Karimnagar District Rep though Public Prosecutor, High Court of A.P., Hyderabad. …………….Respondent/complainant. THE HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.18 of 2001 JUDGMENT: This Criminal Appeal is directed against the judgment dated 6.12.2000 passed by the Assistant Sessions Judge, Huzurabad in S.C.No.780 of 1998, whereby and whereunder the appellants- A2, A3, A4 & A7 were convicted for the offence under Section 395 IPC and sentenced to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.1,000/- each in default to suffer simple imprisonment for three months. I have heard the learned counsel appearing for the appellants/ A2, A3, A4 & A7 and the learned Public Prosecutor representing the state. A2, A3, A4 & A7 before the learned Assistant Sessions Judge, Huzurabad are the appellants herein. In all seven accused were put up for trail before the learned Sessions Judge on the allegation of committing dacoity the offence punishable under Section 395 IPC. In the course of the trial before the learned Assistant Sessions Judge, the prosecution in order to establish the guilt of the appellants, examined P.Ws.1 to 9 and marked documents as Exs.P1 to P13. No defence witness was examined on behalf of the appellants. The material objects were marked as M.Os.1 to 9 and Exs.D1 to D2 were marked on behalf of the appellants. The learned trial Court, on consideration of the entire evidence on record, acquitted the accused-A1, A5 & A6 and convicted the remaining accused i.e., the appellants herein for the offence under Section 395 IPC and sentenced them accordingly. The said order of conviction and sentence is the subject matter of challenging in the present appeal. The brief facts leading to filing of the present appeal may be stated as follows:- That on 19.10.1995, at about 11.30 P.M., A1 to A7 (before the trial Court) armed with knives, went to the house of P.W.1 (K.Prabhakar) situated at Saidabad. While two of the accused were guarding the scene, the remaining accused entered into the house, forcibly took away the gold and silver ornaments worth Rs.21,000/- from P.W.2-Konemalla Sharada and P.W.3-Konemalla Madhunamma by putting them in fear, and, thereafter, decamped with the booty. Subsequently, on a report lodged by P.W.1, the police registered a case in Crime No.175 of 1999. The offence was investigated into by P.W.9-Inspector of Police assisted by P.W.8-Sub-Inspector of Police and a charge sheet has been laid against all the accused, after completing the investigation. According to the prosecution, on 24.11.1995, at about 13.00 hours, the Inspector of Police and the Sub- Inspector of Police arrested A1 to A7 at R.T.C Bus Station, Jammikunta in the presence of the mediators i.e., P.W.5- Kokkula Ramesh and P.W.6-Gandla Saraiah and it is said that in their presence, the property, which was said to have been stolen by the accused from the house of P.W.1, was recovered and it was produced before the Magistrate concerned. Thereafter, it is said that during the course of the trial, P.Ws.2 & 3, identified different items of stolen property as belonging to them. In the instant case, as per the evidence of P.W.7, the learned Magistrate, who conducted the Test Identification Parade on 23.12.1995, in which, P.W.1 identified suspect Nos.2, 3, 6 & 7, P.W.2 has correctly identified suspect Nos.2, 6 & 7 and P.W.3 identified suspect No.7 only. However, the entire evidence relating to the Test Identification is taken into consideration these appellants were identified by the witnesses. The main basis for recording the conviction of the appellants is that they were identified by P.Ws.1 to 3 during the course of Test Identification Parade. However, there is a delay of one month in conducting the Test Identification Parade of the accused, after their arrest. Further P.W.7, the Magistrate stated in the cross- examination that P.W.1 stated before him that two of the accused visited their relatives in the village of P.W.1 prior to the incident and also subsequently, P.W.1 saw the suspects in the police station of Jammikunta one month earlier. The statements of said witnesses recorded by P.W.7 were marked as Exs.D1 and D2. Further in the First Information Report neither the names of the accused nor the identifying the features of the accused were furnished. Therefore, in view of Exs.D1 and D2, which were recorded by P.W.7, the Magistrate at the time of Test Identification Parade itself, the possibility of the suspects being shown to the witnesses in the police station by the police much earlier to conducting the test identification cannot altogether be ruled out. P.Ws.5 & 6 are the mediators present at the time of recovery of the stolen property in the present case as well as some other stolen property relating to some other case. Both these witnesses did not support the prosecution version and according to them, nothing transpired in their presence and no property at all was recovered in their presence. Added to this, these accused were produced before the Magistrate only five days after the alleged date of their arrest. Under these, circumstances, it is highly difficult for this court to entirely rest its decision solely on the evidence of the investigating officer insofar as the alleged recovery of the stolen property is concerned. Another fact, which requires to be mentioned in this context, is that the police did not get any identification proceedings of the property conducted through mediators enabling P.Ws.1 to 3 to identify the stolen property. The mediators in the present case i.e., P.Ws.5 & 6 are also the mediators in Crime No.63 of 1994 of Jammikunta Police Station. The offence in the present case occurred on 19.10.1995 whereas the offence in Crime No.63 of 1994 occurred on 13.7.1994. Curiously the accused in both the cases are one and the same. This is another fact which raises any amount of doubt about the involvement of the same accused in participating in the offence committed in a gap of one year. On a careful analysis of the evidence of the witness and the circumstances, which are indicated herein above, I am of the considered view that it is quite unsafe to convict the appellants for the offence under Section 395 IPC. The trial Court had fallen into error in recording the conviction against them instead of giving benefit of doubt. Consequently, the conviction and sentence passed by the trial Court against the appellants is set aside, the fine amount, if any, paid by them shall be refunded. Accordingly, the Criminal Appeal is allowed. _________________________ JUSTICE R. KANTHA RAO Date:13.08.2010 mrb