IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE NINETH DAY OF OCTOBER TWO THOUSAND NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.261 of 2005 Between: The State, through Inspector of Police, AD Cell, CID, Hyderabad, rep. by Public Prosecutor, High Court of A.P., Hyderabad … Appellant And: T. Shanker Reddy & 2 others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.261 of 2005 JUDGMENT: This appeal is directed against the judgment dated 23.12.2002 in CC No.4 of 2000 on the file of Additional Metropolitan Sessions Judge-cum-Additional Family Court, Hyderabad, wherein, the respondents herein-A.1 to A.3 are found not guilty of the charges under Section 292 IPC and under Sections 25(1B)(a) read with 27 of the Indian Arms Act and were acquitted under Section 248(1) Cr.P.C. 2. Heard the learned Additional Public Prosecutor for the appellant-State. None appears for the respondents-accused. Perused the record. 3. The case of the prosecution in brief is as follows: On the intervening night of 2/3.7.1991 when APSRTC bus bearing No.AP 9Z 2294 proceeding from Kakinada to Secunderabad, after crossing Keesara bridge at about 2.45 a.m., three persons got up from their seats in the bus and stopped the same and robbed the passengers and left the bus. On a complaint given by PW.7, Nandigama PS registered a case in Cr.No.150 of 1991 and the same was subsequently transferred to Kanchikacherla PS and registered as Cr.No.48 of 1991 and investigated into. Initially a report was filed before the Judicial Magistrate of I Class, Nandigama to close the case as undetected on 31.12.1999. Subsequently, during the course of some other case in Cr.No.43 of 1992 of Chilakaluripet Rural PS, the Inspector of Police, CID, along with their police officials and mediators, raided Ravi Lodge, Sattenapalle at 5 a.m. on 10.05.1995 on prior information and found the accused-respondents 1 to 3 herein along with one air bag. In pursuance of the confessional statements of the accused, air bag was seized and it was containing among other things, three lungies, 80 live rounds, two button knives and a diary. In pursuance of confessional statement of A.1, titan wristwatch and firearm were seized from his possession and firearm and a gold ring was seized from the possession of A.3. The accused were subsequently produced before the VII Judicial Magistrate of I Class, Guntur and they were given to police custody from 13.05.1995 to 15.05.1995, during which period, they took the police to several places from where certain properties were seized at their instance under panchanama. Specimen hand writings and signatures of A.1 and A.2 were obtained by the Inspector of Police in the presence of mediators on 30.05.1995 and they were sent to FSL along with diary. The sample writings and the writings in the diary were found to tally. The identification proceedings were also conducted and some of the witnesses identified the accused and the properties. After obtaining necessary sanction for prosecution, charge sheet was filed. 4. The trial Court framed the charges under Section 392 IPC and Section 25(1B)(a) read with 27 of the Indian Arms Act and the accused pleaded not guilty to the charges and claimed to be tried. 5. In support of their case, the prosecution examined PWs.1 to 14 and marked Exs.P.1 to P.15. No witnesses were examined on behalf of the defence. On a consideration of the evidence available on record, the learned Sessions Judge found the accused not guilty and acquitted them of the charges. 6. A perusal of the impugned judgment would disclose that though the accused were said to have been arrested on 10.05.1991 at Ravi Lodge, Sattenapalle in the presence of mediators and certain items of properties and weapons are recovered from their possession, no such property or weapons are produced before the Court. The alleged seizure of weapons or properties from the possession of the accused or at their instance from elsewhere in pursuance of their alleged confessional statements has not been established at all. The panchanama was not attested by any one except by the Inspector of Police, who is said to have effected the arrest. Mediator-PW.5 was not an independent witness and he was a stock witness to the police. No records or registers maintained by Ravi Lodge were seized nor any employee of the said lodge was examined to show that police have conducted any raid on the lodge on 10.05.1991 and apprehended the accused from the lodge. The prosecution has miserably failed to establish that the accused were found in the lodge or that any property or weapons were recovered from their possession or at their instance. The failure on the part of the prosecution to produce the items of property or weapons alleged to have been recovered from the possession of the accused and exhibit them as material objects during the trial threw any amount of doubt over the alleged apprehension of the accused or recovery of those items from their possession. In the absence of any evidence to show that any items of case property or weapons were recovered in pursuance of the alleged confessional statements of the accused, such statements would not have any probative value and they are of no consequence. Among other things, the Inspector of Police is said to have recovered one diary said to be containing certain incriminating hand writings in the hand of A.1 and said diary was sent to FSL along with specimen hand-writings of A.1 and a report was received to the effect that both writings tallied. The Inspector of Police, however, did not choose to obtain the specimen handwritings of A.1 in the presence of the learned Magistrate or through process of Court and said to have taken the specimen handwritings of A.1 by himself, which is not permissible under law. The report of FSL to the effect that the writings in the diary seized from A.1 tallied with the specimen handwritings of A.1 obtained by the Inspector does not, therefore, have any evidentiary value and the same was rightly rejected by the Court below. 7. The prosecution seeks to rely upon the evidence of PWs.1, 2 and 7 to establish the identity of the accused. PWs.1, 2 and 7 are said to have identified the accused in the test identification parade conducted by the learned Magistrate PW.8. It is to be noted that the incident is said to have taken place on the night of 2/3.7.1991. The test identification was conducted four years later in 1995 under Ex.P.10 proceedings. PWs.1, 2 and 7 are said to be traveling in the bus as passengers on that night. Admittedly, there were no lights burning in the bus at the time of occurrence, which was during mid-night. PWs.1, 2 and 7 have not disclosed regarding any identical features by which they could identify the culprits. In the absence of such material enabling PWs.1, 2 and 7 to identify the culprits, their identification of the accused four years after the occurrence in the test identification parade conducted by the Magistrate, cannot be given due weight and credence, especially, when they had no occasion or opportunity to see and observe the colour, appearance and physical features of the culprits owing to darkness at the time of the occurrence. The claim of PWs.1, 2 and 7 that they could identify the accused as culprits is, therefore, untenable and un-acceptable. The test identification proceedings in the present case, though conducted by the learned Magistrate cannot, therefore, be relied upon to establish the identity of the accused as culprits owing to the long interval of more than four years between the time of occurrence and the date of test identification and also the fact that the witnesses had no opportunity or occasion to clearly see and observe the culprits at the time of occurrence. Thus, the prosecution has, therefore, failed to establish the identity of the accused as offenders. Under those circumstances, the learned Sessions Judge has rightly found the accused not guilty of the charges framed against them. The judgment of acquittal passed by the learned Sessions Judge does not, therefore, call for any interference by this Court. Even on reappraisal of the evidence, there are absolutely no compelling reasons or strong grounds for setting aside the order of the acquittal, which was passed by the learned Sessions Judge on proper appreciation of the evidence available on record. 8. In the result, the criminal appeal is dismissed. _______________________ G.V.SEETHAPATHY, J Date: 09.10.2009 bss