HON’BLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No. 1724 of 2004 O R D E R: The revision petitioner is A-3. PW.1 is the victim in this case. PW.1 is an auto driver. PW.3 is the owner of auto bearing No.AP 03V 1638. PW.1 was the driver thereof. 2. On 8.10.1999, A.1 to A.3 allegedly hired the auto driven by PW.1. They took the auto to the way between Mukkoti and Chandragiri fort. The accused allegedly attacked PW.1, caused injuries to him and committed robbery by taking away the Auto with them. PW.1 subsequently, lodged a police complaint under Ex.P1. The prosecution alleged that A.1 to A.3 thus were guilty of the offences punishable u/Secs.392 and 397 IPC. 3. The learned Additional Sessions Judge, Tirupathi, framed two charges against A.1 to A.3 for the offences punishable u/Secs.397 and 201 IPC. As many as ten witnesses were examined by the prosecution. Exs.P1 to P10 were marked. The auto owned by P.W.3 and driven by PW.1 was also marked as M.O.1. After full fledged trial, the learned trial Judge concluded that the offence punishable u/Sec.397 IPC was made out against the accused. (Needless to state that the offence u/Sec.392 IPC stands merged with the offence u/Sec.397 IPC). Conviction was recorded against the accused. Aggrieved by the same, A.3 preferred appeal before the learned IV Additional Sessions Judge, Tirupathi. The learned Additional Sessions Judge found that the conviction and the sentence recorded by the trial court was justified. The appeal consequently, was dismissed both regarding the conviction as well as the sentence. A.3, who preferred Crl.A.No.203 of 2000, later filed the present revision. He was given legal aid to represent his case. 4. It is the contention of Smt.Shanti Neelam, learned counsel representing the revision petitioner/A.3 that no case is made out against A.3 and that A.3 at any rate deserves to be acquitted by giving benefit of doubt. Although, as many as ten witnesses were examined by the prosecution, P.W.1 was the only eye-witness to the incident and the rest of the witnesses were those who admitted and treated P.W.1 in the hospital and the police officials, who conducted investigation. The evidence of P.W.1 therefore, is crucial to determine the guilty of the accused including A.3. Hence the present revision. 5. P.W.1 identified all the three accused as culprits, who travelled in his auto in the test identification parade conducted by P.W.8. P.W.1 identified the three culprits apart from another person who was allegedly in consortium with the accused in the commission of the offence. 6. It is the case of PW.1 that while A.1 sat beside him in the auto, A.2 and A.3 and another person sat in the passengers’ seat in the auto. Nevertheless, PW.1 was able to identify all the accused including the revision petitioner/A.3. 7. It may be noticed that according to the prosecution case, the auto was engaged by the accused at about 8.00 p.m. Added to it, it is not A.3, but it was A.1, who sat beside P.W.1 in the auto. I agree with the contention of the learned counsel for the accused that in such circumstances, it is not easy for P.W.1 to recall the identity of A.3. Added to it, it is the case of A.3 that he was shown to P.W.1 before the test identification parade. There is no overtacts attributed against A.3. P.W.1 contended that when the auto was stopped near Chandragiri cross roads, the accused pounced upon P.W.1 and beat him to such an extent that P.W.1 became unconscious. 8. I am afraid that where there is no specific overtacts against A.3 and where A.3 along with others engaged auto at about 8.00 p.m. , the very participation of A.3 in the commission of the offence deserves to be doubted. This is more so, where A.3 contended that she was shown to P.W.1 by the police before test identification parade. By the very nature of the circumstances, it was difficult for P.W.1 to recall A.3, as the very engagement of the auto was during night time and as A.3 did not sit beside P.W.1 but sat in the passengers’ seat behind P.W.1. The added factor is that there is no specific overtacts. In these cumulative circumstances, I consider that it would be an appropriate case where benefit of doubt should accrue to the accused. 9. I consider that the prosecution failed to establish the guilt of A.3/Revision Petitioner beyond reasonable doubt. I therefore, deem it appropriate to hold that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. A.3/Revision petitioner consequently, deserves to be acquitted. The trial court and the appellate court erred in providing benefit of doubt in favour of the accused. The Judgment and conviction of the trial court and appellate court consequently set aside. 10. In the result, the appeal is allowed. Revision petitioner/A.3 is found not guilty of the offence punishable u/Sec.397 IPC and is acquitted of the charge levelled against him. His bail bonds stand discharged. The fine amount if already paid by A.3, shall be refunded to him. _____________ K.G.SHANKAR,J Dt. 15.7.2011 Mjl/* HON’BLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No. 1724 of 2004 Dt. 15.7.2011 Mjl/*