THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.540 OF 2004 JUDGMENT: This appeal by the State under Section 374 (2) of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) is directed against the judgment, dated 1st March, 2004, in S.C.No.80 of 2003 on the file of the VIII Additional District & Sessions Judge (FTC) Visakhapatnam, whereunder and whereby, the appellants-accused were found guilty and accordingly they were convicted and sentenced. A-1 is sentenced to suffer Rigorous Imprisonment for a period of five years and to pay a fine of Rs.100/- in default to suffer Simple Imprisonment for a period of one month for the offence under Section 392 IPC; A-2 is sentenced to suffer Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.200/- in default to suffer Simple Imprisonment for a period of two months for the offence under Section 392 IPC read with 397 IPC; and further A-1 and A-2 are sentenced to suffer Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.200/- in default to suffer Simple Imprisonment for a period of two months each for the offence under Section 394 IPC. A-3 is sentenced to suffer Rigorous Imprisonment for a period of five years and to pay a fine of Rs.100/- in default to suffer Simple Imprisonment for a period of one month for the offence under Section 392 IPC read with 34 IPC and he is further sentenced to suffer Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.200/- in default to suffer Simple Imprisonment for a period of two months for the offence under Section 394 IPC read with 34 IPC, and all the sentences against the appellants were ordered to run concurrently. 2. The case of the prosecution in brief is as follows: P.W.1 is a partner in Kings Service. On 07.03.2003, P.W.1 and his supervisor P.W.10 went to Canara Bank, Daba Gardens on a Rajdoot motorcycle for taking cheque from his another partner. When they went to the bank, P.Ws.2 and 7 were present in the bank, after withdrawing some cash, the Varma(P.W.2) gave M.O.1 cash bag containing the cash to P.Ws.1 and 10. P.W.1 was driving the motorcycle and P.W.10 was the pillion rider. When they reached Padmanabhapuram turning, there the road was upgradient. At that time, A-1 and A-2 came from the bushes and caused injuries to both P.Ws.1 and 10 and committed robbery of M.O.1 bag containing the cash. At first instance, P.W.10 was taken to the hospital on the same day at about 2.30 p.m., then P.W.1 lodged a complaint Ex.P1 with P.W.12, who informed the same to C.I.of police. Then, C.I. of police alerted all the police stations through VHF(Very High Frequency) set, then they reached the scene of offence. The police observed the scene of offence and seized certain incriminating articles. While the Inspector of Police and mediators were proceeding towards the house of A-3, P.W.1 found two persons in the house of A-3 and identified them as the persons, who committed robbery. Then P.W.13, the Investigating Officer arrested them and interrogated. They gave a confession. In pursuance of confessional statements made by A-1 and A-2, M.O.12 knife was seized from A.1 and A-2 produced M.O.1 bag containing cash of Rs.5,65,000/-. Mediators report was drafted in the presence of mediators. Later they were produced before the concerned VII Metropolitan Magistrate for judicial custody. After receipt of wound certificates from P.W.11 and after receipt of FSL report, the police filed the charge sheet. 3. The charges leveled against the accused are: Firstly: That you A-1 and A-2 on or about the 7th day of March 2003 at 13.45 hours at Padmanabhanagar(near Gopalpatnam) committed theft of Rs.5.65 lakhs which was kept in rexin bag and that you A-1 and A-2 voluntarily caused injuries to Gorle Tatababu and Danthuluri Trinadh Varma respectively by putting them in fear of instant death and that you thereby committed the offence of robbery punishable under Section 392 of IPC and within my cognizance. Secondly: That you A-1 and A-2 of you on or about the same day and at the same time and place committed robbery of cash of Rs.5.65 lakhs of Gorle Tatababu and Dantuluri Trinadh Varma, and that as such you A-1 and A-2 voluntarily caused injuries to Gorle Tatababu and Dantuluri Trinadh Varma respectively, and that you thereby committed an offence punishable under Section 394 of IPC and within my cognizance. Thirdly: That you A-1 and A-2 of you on or about the same day and time and place mentioned in the charge sheet committed robbery of Rs.5.65 lakhs of Gorle Tatababu and Danthuluri Trinadh Varma, and that at the time of committing the said robbery you used the deadly weapons viz., daggers and caused grievous injury to Dantuluri Trinadh Varma and thereby committed the offence punishable under Section 392 read with 397 of IPC and within my cognizance. Fourthly: That A-3 of you in furtherance of your common intention along with A-1 and A-2 on or about the same day and at the same time, place mentioned in the charge sheet committed robbery of Rs.5.65 lakhs and that A- 3 of you committed an offence punishable under Section 392 IPC read with 34 IPC and within my cognizance. Fifthly: That A-3 of you in furtherance of your common intention along with A-1 and A-2 on or about the same day and at the same time and place mentioned in the charge sheet committed robbery of cash of Rs.5.65 lakhs of Gorle Tatababu and Dantuluri Trinadh Varma, and that as such A-1 and A-2 voluntarily caused hurt to Gorle Tatababu and Dantuluri Trinadh Varma and that you A-3 of you committed the offence punishable Under Section 394 of IPC read with 34 IPC and within my cognizance. Sixthly: That you A-3 of you in furtherance of the common intention of A-1 and A-2 of you on or about the same day and at the same time and place mentioned in charge sheet committed robbery of Rs.5.65 lakhs of Gorle Tatababu and Dantuluri Trinadh Varma and at the time of committing the said robbery, you used the deadly weapons viz., daggers and caused grievous hurt to Dantuluri Trinadh Varma and that you A-3 of you committed the offence punishable under Section 397 IPC read with 34 IPC and within my cognizance. When the charges read over and explained to the accused, the accused pleaded not guilty and claimed to be tried. 4. In order to substantiate its case, the Prosecution examined PWs.1 to 15 and got marked Exs.P.1 to P.24 besides case properties Mos.1 to 18. No oral evidence was adduced on behalf of the accused but Exs.D1 to D5 were marked. 5. The trial Court accepting the evidence of P.Ws.1 and 10 with regard to the actual incident and also the evidence of P.Ws.9 and 13 with regard to the seizure of cash from the possession of A-1 and A-2, found the accused guilty and accordingly they were convicted and sentenced as stated supra. Challenging the same, the present appeal is filed. 6. Now the point for determination is, whether the Prosecution proved its case against the accused beyond all reasonable doubt for the charges leveled against them. 7. The learned Counsel for the appellants contended that the necessary ingredients for the dacoity have not been established beyond doubt, and that there is a discrepancy with regard to the cash in Ex.P1, and that the descriptive particulars of A-2 were not noted in Ex.P1, and that there is no evidence to show that A-3 shared the common intention with A-1 and A-2 to commit the robbery, and that the identification of the accused for the first time in the Court is valueless, and that A-3 was not at all present at the time of incident, and that there is inconsistency with regard to the amount drawn from the Canara Bank and the amount allegedly seized from the possession of the accused, and therefore, he prays to set aside the convictions and sentences recorded against the appellants. 8. On the other hand, learned counsel representing the Public Prosecutor contended that there is no other reason for P.Ws.1 and 10 to foist a false case against the accused, who are totally strangers, and the discrepancies as pointed out by the learned counsel for the appellants are very minor and trivial in nature and that the evidence of P.W.11 would clearly go to show that P.Ws.1 and 10 sustained injuries during the course of attack, that the evidence of P.Ws.9 and 13 would clearly go to show that M.O.1 bag containing the cash was seized at the instance of accused 1 and 2, similarly, at the instance of A-1 M.O.12 knife was seized, that A-3 was harbouring the criminals though he was not actually present, but there was every reason for him to shield the accused 1 and 2 from the commission of offence, that is the reason why when the Investigating Officer asked him to give the key of the house to open, he stated that he does not have any key and that the trial Court after considering the evidence on record, rightly found the appellants guilty and there are no grounds to interfere with the impugned judgment and she prays to dismiss the appeal. 9. P.W.11, who is working as a Private Medical Practitioner at Gopalapatnam, examined P.W.1 on 07.03.2003 at 2.30 p.m. and found the following injuries: 1. Abrasion 2” in diameter over right elbow region and 2. Contusion injury right side of the chest He opined that the above two injuries are simple in nature. He issued Ex.P.7 wound certificate. PW.11 also examined P.W.10 and found the following injuries: 1. Laceration 10 cm X 4 cm X 2 cm over parietal region just posterior to frontal region. 2. Abrasion 4” X 1 ½ inch over anterior aspect of right thigh. 3. Laceration over themar eminance by 4” X 2” X ½” over left hand, and 4. Loss of teeth upper jaw 4 in number, two incisor and two contusions. He opined that injuries 1 to 3 are simple in nature and injury No.4 is grievous in nature. He issued Ex.P8 wound certificate. He admitted that the injuries in Ex.P7 would be caused due to fall from running motorcycle. It is not the case of the accused that P.Ws. 1 and 10 sustained those injuries at different places in different manner and at the hands of different persons, other than the accused. Practically the evidence of P.W.11 and the recitals in Exs.P7 and P8 remained unchallenged. 10. The evidence of P.W.1 would go to show that while himself and P.W.10 were coming from Canara Bank, Dabagardens and proceeding towards Andhra Cement Factory at Porlupalem, Pendurthi Mandal and when they reached near Padmanabhapuram turning, both A-1 and A-2 came from the bushes, that A-1 was holding iron rod and A-2 was having a knife in his hand and attacked them and caused injuries to both P.Ws.1 and 10, and thereafter, A-1 and A-2 snatched away M.O.1 containing the cash, and P.W.4, another employee in the cement factory, also witnessed the incident. According to P.W.4, he was returning from the factory to go to his house on his motor bike at about 1.30 or 1.40 p.m. and when he reached near the turning of Padmanabhanagar, he noticed some galata and immediately he stopped his vehicle and he saw two persons running away and that P.W.1 was crying that cash in a bag was taken away by thieves. He found P.W.10 lying on the ground with injuries. He did not identify the persons, who ran away from the scene of offence. It is his further evidence that, half an hour thereafter, some people were running towards the house of A-3, he also went to the house of A-3; some of his company officers and the police officials were also present; as the cash found in the house of A-3 along with A-1 and A-2, they were arrested. Though P.W.4 did not identify the assailants, the evidence of P.Ws. 1 and 10 would clearly go to show that the appellants 1 and 2 are the persons, who participated in the commission of offence. No doubt, the appellants 1 and 2 are totally strangers for P.Ws.1 and 10. But, at the same time, the incident is alleged to have taken place in a broad daylight and while snatching away M.O.1 bag containing cash, the assailants caused injuries to P.Ws.1 and 10. Therefore, their physical features must have been imprinted in their mind so as to recollect them at a later point of time to enable them to identify. Immediately, within one hour after the incident, the appellants 1 and 2 were found in the house of A-3. The non-participation of P.W.4 in test identification parade will not be a ground to disbelieve the case of the prosecution, especially, when P.Ws.1 and 10 have no grouse or enmity against the accused so as to implicate them falsely in a case of this nature. In view of the fact that the appellants 1 and 2 are totally strangers and they were not known to them prior to the incident, they would not have roped the appellants 1 and 2 falsely leaving the real assailants. After a lengthy cross-examination, nothing has been elicited in the evidence of P.Ws.1 and 10 so as to discredit their testimony. Perhaps, that is the reason why the trial Court also placed implicit reliance on the evidence of P.Ws.1 and 10 so as to base the conviction. 11. First Information Report was lodged by P.W.1 with P.W.12 at about 2.30 p.m. It would clearly go to show that while himself and P.W.10 were coming from the bank and proceeding towards cement factory and when they reached near the turning of Padmanabhanagar, two persons attacked them and caused injuries and snatched away the cash bag containing the cash of Rs.5,79,000/-. So, the earliest version of the incident, which was given within one hour after the incident, is completely in corroboration with the evidence of P.W.1. Therefore, the recitals in Ex.P1 can be used to corroborate the evidence of P.W.1. Similarly, the evidence of P.W.10 would clearly go to show that while himself and P.W.1 were coming after collecting cash from P.W.7 and when they reached near the Padmanabhanagar turning, two persons holding iron rod and knife attacked them and caused injuries and snatched away the cash bag M.O.1 containing the cash. The presence of P.W.10 at the relevant point of time is established beyond reasonable doubt. There is no other reason for P.W.10 to speak false against A-1 and A-2. 12. Similarly, the evidence of P.W.7 would go to show that P.W.2 gave a self-cheque for Rs.5,79,000/- to him to encash the same and he had drawn in his name, out of which, an amount of Rs.14,000/- was taken by P.W.2 and the remaining balance was kept in the cash bag; that P.Ws.1 and 10 were asked to go to the factory by taking the cash on the motorcycle of P.W.1 and he was directed to go to factory by bus. So, his evidence would clearly go to show that an amount of Rs.5,79,000/- was withdrawn from the bank. 13. P.W.2 is another partner of King Services. He stated that P.Ws.1 and 10 brought a cheque and the same was deposited in his account, in turn, he issued a cheque in favour of P.W.7 for Rs.5,79,000/- and the same was encashed. He also stated that out of Rs.5,79,000/-, he has taken Rs.14,000/- towards his commission and the remaining amount has been kept in M.O.1 bag, then he asked P.Ws.1 and 10 to go to factory along with cash. Nothing has been elicited to discredit his testimony. 14. The evidence of P.W.3 would go to show that on hearing that the culprits were hiding in the house bearing D.No.6-76 in Padmanabha Nagar, all of them went to that house; that PW.1 peeped inside the house through window and found those culprits inside the house with cash inside, then P.W.1 shouted that the persons, who attacked them and committed robbery were inside the house; then the police entered into the house and apprehended them. PW.3 is also totally disinterested witness, and nothing has been elicited to discredit his testimony. The fact that A-1 and A-2 were hiding in the house of A-3 is spoken to by the six witnesses, P.Ws.1, 3, 4, 5, 7 and 11. So, these witnesses have no enmity against the accused. 15. The evidence of P.Ws.9 and 13 would go to show that the police observed the scene of occurrence near the curve at Padmanabhanagar and seized some incriminating material and Ex.P3 observation report was drafted. Thereafter, the police and inmates went to the house of A-3 and found the culprits inside the house of A-3. They also found the cash bag containing cash of Rs.5,65,000/- and the same was seized. The police also seized the bloodstained knife at the instance of A-2. Except giving suggestion that he (PW.9) was working as a contractor in the factory and he was deposing falsely, but nothing was elicited to discredit his testimony. The evidence of these two witnesses would clearly go to show that M.O.6 cash of Rs.5,65,000/- has been seized from the possession of A-1 and A-2. A-1 and A-2 have not accounted for the same. There is no other reason for PW.9 and 13 to speak false against the accused. Therefore, the trial Court rightly placed implicit reliance on the evidence of P.Ws.9 and 13 with regard to the arrest of A-1 and A-2 and seizure of M.O.6 cash from them. Therefore, there are absolutely no grounds to interfere with the conviction recorded against the appellants 1 and 2. 16. Insofar as appellant No.3 is concerned, admittedly, he has not participated in the commission of offence. Except alleging that he was present at the time of incident at the turning of the Padmanabhanagar road, there is no material to show that he shared the common intention with A-1 and A-2. When A-1 and A-2 were found to be hiding in the house of A-3 police and mediators asked him to produce the key, but he pleaded that the key was not with him. So, he must have knowledge that both the offenders were hiding in his house. From the evidence it is clear that within one or two hours of the incident, appellants 1 and 2 were caught red handed. The conduct and behavior of A-3 would clearly go to show that he must have knowledge about hiding of A-1 and A-2 in his house. Otherwise, the house would not have been locked from outside. There is no scope or possibility for any other person to lock the door of the house of A-3, except for A-3. Therefore, it is not the case of the prosecution that appellant No.3 has given information to A-1 and A-2 about P.Ws.1 and 10 taking the cash by riding the motorcycle, and in pursuance of the said information, A- 1 and A-2 attacked P.Ws.1 and 10. Except harbouring the criminals, there is no other evidence to show that A-3 shared the common intention with other accused. At best, the case of A-3 falls under Section 212 of IPC because he voluntarily gave shelter to accused 1 and 2 knowing that they are the offenders with an intention to screening them from legal punishment. Since the offence under Section 212 is a minor offence when compared to Section 394 read with 34 IPC, framing of charge may not be necessary and it would not cause any prejudice. On the other hand, the specific allegation of the prosecution is that he gave shelter to A-1 and A-2. Therefore, the conviction of A-3 for the offence under Section 392 r/w 34 and 394 read with 34 IPC are set aside, and A-3 found guilty at the offence punishable under Section 212 of IPC. 17. In the result, the convictions recorded by the trial Court in judgment dated 01.03.2004 in Sessions Case No.80 of 2003 on the file of the VIII Additional Sessions Judge(Fast Track Court) Vijayawada against the appellant No.1/A-1 of the offences under Sections 392 and 394 IPC and against the appellant No.2/A-2 of the offences under Sections 392 read with 397 IPC AND 394 IPC are confirmed. But, the sentence of imprisonment imposed against appellant No.1/A-1 of the offences punishable under Sections 392 and 394 IPC is reduced from rigorous imprisonment for seven years to rigorous imprisonment for three years under each count, while confirming the fine. The sentence imposed against the appellant No.2/A-2 by the trial Court is confirmed. The sentences of imprisonment imposed against A-1 and A-2 shall run concurrently. 18. In so far as the appellant No.3/A-3 is concerned, he is found not guilty of the offences punishable under Sections 392 read with 34 and 394 read with 34 IPC and accordingly the conviction and sentence thereunder, are set aside. Appellant No.3/A-3 is found guilty of the offence punishable under Section 212 IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of one month. 19. The period of remand underwent by the appellants/A-1 to A- 3 during investigation, trial and after conviction shall be given set off. 20. The Criminal Appeal is, accordingly, partly allowed. _____________ (K.C.Bhanu, J) 23rd October, 2009 Rns