IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE TWENTYSECOND DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 29 OF 2006 CRIMINAL APPEAL NO. 944 OF 2006 CRIMINAL APPEAL NO. 1914 OF 2005 AND CRIMINAL APPEAL NO. 1697 OF 2006 Between: Crl.A.No. 29 of 2006 Mada Sadanandam … Appellant-A2 V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of AP Hyderabad … Respondent-complainant Between: Crl.A.No. 944 of 2006 Manchala Sadanandam … Appellant-A3 V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of AP Hyderabad … Respondent-complainant Between: Crl.A.No. 1914 of 2005 l. Mydari Viyender @ Venu @ Sataraj 2. Mekala Ramesh … Appellants-A1 & A4 V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of AP Hyderabad … Respondent-complainant Between: Crl.A.No. 1697 of 2006 Thallagampa Janardhan @ Jani … Appellant-A5 V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of AP Hyderabad … Respondent-complainant The Court made the following: (common judgment follows next page) THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 29 OF 2006 CRIMINAL APPEAL NO. 944 OF 2006 CRIMINAL APPEAL NO.1914 OF 2005 AND CRIMINAL APPEAL NO. 1697 OF 2006 COMMON JUDGMENT : Criminal Appeal No. 29 of 2006, Criminal Appeal No. 944 of 2006 and Criminal Appeal No. 1914 of 2005 are filed by A-2, A-3, A-1 and A-4 against the judgment dated 15-12-2005 passed by the II- Additional Sessions Judge, Warangal in SC.No. 108 of 2005. Whereas Criminal Appeal No. 1697 of 2006 is filed by A-5 against the judgment dated 13-2-2006 passed by the II-Additional Sessions Judge, Warangal in SC.No. 397 of 2005. 2. The learned II-Additional Sessions Judge, Warangal, tried A-1 to A-4 in SC.No. 108 of 2005 and he tried A-5 in SC.No. 397 of 2005 and rendered separate judgments. All the appellants were ultimately found guilty by the learned trial Court for the offence under section 395 of IPC and were sentenced to undergo five years of Rigorous Imprisonment each and to pay a fine of Rs.1000/- each, in default to suffer simple imprisonment for three months each for the said offence. 3. Since all these criminal appeals relate to one incident, wherein the witnesses are also common and the questions required to be considered being also common, they are being disposed of by this common judgment. 4. Both the Sessions Cases relate to one incident. According to the prosecution A-5 i.e., the appellant in Criminal Appeal No. 1697 of 2006 was absconding, his case was split up and he was separately tried. 5. Shortly stated, the prosecution case is as follows : On the intervening night of 21/22-06-2003 while PW-1 K. Laxma Reddy his wife and daughter were sleeping in their house, at about 03:30 a.m., the tenant, a student by name, Kumar pressed the calling bell, the wife of PW-1 opened the doors, four unknown culprits entered the house, threatened the inmates with dire consequences and took away cash of Rs.28,000=00, four wrist watches and some other gold ornaments. Subsequently on a complaint lodged by PW-1, a case in Crime No. 114 of 2003 came to be registered at Kazipet Police Station and was investigated into. In so far as A-5 is concerned, he surrendered before the Court in connection with Crime No. 116 of 2004, it is said that on his confession, he was found to be involved in the present incident and an amount of Rs.20,000-00 was said to be recovered from him and the remaining amount was said to have been spent away by him. 6. In the course of trial in SC.No. 108 of 2005 the prosecution in order to prove the guilt of the accused, examined PWs 1 to 9 and marked Exs.P1 to 19 besides MOs.1 to 8. Whereas in SC.No. 397 of 2005, the prosecution examined PWs 1 to 7 and marked Exs.P1 to P6 and MOs 1 to 8. The learned trial Court in both the Sessions Cases convicted A-1 to A-5 and sentenced them to punishment as mentioned hereinabove. 7. Now the point for consideration is whether the conviction and sentence recorded by the trial Court against the appellants (A-1 to A-5) can be sustained? 8. The incident took place on 22-06-2003 at about 03:30m a.m., According to the prosecution A-1 to A-4 were arrested in another case three months after the incident. The test identification parade was conducted by the learned Magistrate on requisition of the Investigating Officer on 22-11-2003 i.e., five months after the incident. Moreover, it is specifically mentioned in Ex.P-1 report lodged by PW-1 that four persons entered into the house and they were wearing masks. Only in the evidence of PW-1 he sought to improve his version stating that after some time two persons removed their masks. This being an improvement to cover up the latches in the prosecution version, the learned trial Court ought not to have accepted the same in view of the fact that the test identification parade was conducted five months after the incident, and it is specifically mentioned in Ex.P-1 report that four persons were wearing masks, In my considered view, it could not have been possible at all for PWs 1 and 2 to identify the assailants. Further PW-2 the wife of PW-1 did not identify any of the accused during the test identification parade. Whereas PW-1 identified A-1 and A-2. Kumar (LW-4) is the tenant. As per the prosecution story, the assailants first approached Kumar (LW-4) and only when Kumar switched on the calling bell, PW-2 opened the doors and the four assailants entered into the house of PW-1. The prosecution version is that Kumar (LW-4) identified A-1 and A-4 in test identification parade. But Kumar (LW-4) who had sufficient opportunity and time to observe the assailants was not examined by the prosecution and no satisfactory explanation is offered by the prosecution for non-examination of Kumar (LW-4). Another crucial aspect in this case is that when it is the specific version of PW-1 mentioned in Ex.P-1 report that only four persons entered into the house and participated in the commission of offence, the Investigating Officer included A-5 in the charge sheet on the ground that in the subsequent investigation, his involvement came to light. The basis for involving A-5 in this case is nothing but his confession after he surrendered himself voluntarily before the Court in connection with another case. In the manner in which, A-5 was implicated in this case creates any amount of doubt as to the genuineness of the entire prosecution story. 9. The panch witnesses PWs 4 and 5 for recovery of property did not support the prosecution and the learned trial Court ought not to have placed reliance on the evidence of police witnesses in a case of this nature. 10. Thus, in the instant case, there is no reliable and satisfactory evidence in proof of involvement of appellants in commission of crime. The learned trial Court erroneously recorded the conviction against the appellants on surmises and conjectures. The conviction and sentence passed by the learned trial Court does not stand to legal scrutiny. 11. For the foregoing reasons, the conviction and sentence passed by the learned trial Court is set aside. All the criminal appeals are allowed. The appellants in Criminal Appeal No. 29 of 2006, Criminal Appeal No. 944 of 2006 and Criminal Appeal No. 1914 of 2005 A-2, A-3, A-1 and A-4 and the appellant in Criminal Appeal No. 1697 of 2006 A-5 were found not guilty for the offence under section 395 of IPC and they are acquitted of the said offence. The fine amount, if any, paid by the appellants (A-1 to A-5) shall be refunded to them. If the appellants (A-1 to A-5) are still languishing in jail in connection with this case, they shall be released forthwith, if they are not required in any other case. __________________________ JUSTICE R. KANTHA RAO. 22-09-2011 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 29 OF 2006 CRIMINAL APPEAL NO. 944 OF 2006 CRIMINAL APPEAL NO. 1914 OF 2005 AND CRIMINAL APPEAL NO. 1697 OF 2006 COMMON JUDGMENT CIRCULATION NO.51 Date:22-09-2011 Court Master: I s L Computer No. 43