THE HON’BLE SRI JUSTICE B.N. RAO NALLA Crl.R.C.No.484 of 2004 ORDER: This Criminal Revision Case is filed against the judgment, dated 08.03.2004 in Criminal Appeal No.32 of 2003 on the file of the III Additional District and Sessions Judge, (Fast Track Court), Ranga Reddy District, at L.B.Nagar, whereby and wherunder the sentence passed by the II Additional Assistant Sessions Judge, Ranga Reddy by judgment dated 24.3.2003 in S.C.No.940 of 2002 against A.1 to A.5 was modified from rigorous imprisonment of 5 years to rigorous imprisonment of 3 years while confirming conviction, fine amount imposed by the trial court and allowing the set off under Section 428 Cr.P.C. The brief facts of the case that are necessary for disposal of the present revision are as follows: That on 5.9.2000 at about 7.30 p.m., A.1 being friend of PW.6 invited him to be the chief guest on the occasion of birth day party of A2; that while they were discussing about the birth day party at Ganesh Nagar Street, Ramanthapur at about 8.15 p.m., A.3 and A.4 appeared there and attacked PW.6 from behind by sprinkling chilly powder into his eyes. A.3 threatened PW.6 at the point of knife, and when PW.6 offered resistance, he caused him a bleeding injury over his hand and some gold ornaments and purse containing cash and also Malaysian dollar worth Rs.25,000/- were snatched away; that PW.6 preferred police complaint Ex.P.2 and same was registered as Crime No. 303 of 2002 under Section 394 IPC; that A.3 and A.4 were arrested on 13.9.2000 and their confessional statements were recorded; that M.O.4 purse containing Malaysian dollars and M.O.7 knife were seized from them; that A.1 and A.2 also were arrested on the same day at 4.40 p.m.; that their confessional statements were also recorded. Some Malaysian currency notes- M.Os 1 and 2 were seized from them; that A5 was arrested on 15.10.2000 and his confessional statement was also recorded and M.O.9 gold chain, M.O.10 gold ring, M.O.11 wrist watch and M.O.12 two dollar Malaysian currency note were recovered from him and that thereafter the provision of law was altered from 394 IPC to 395 IPC that test identification parade was conducted by the learned Additional Judicial Magistrate of First Class, West and South, Ranga Reddy District whereat PW.6 identified A.1 to A.4. Charge sheet was laid against A1 to A5 for the offence under Section 395 IPC in the court of learned Judicial Magistrate of First Class, Ranga Reddy District East and North. The defence of the accused was one of total denial. Taking into consideration, the evidence as well as other material brought on record by the prosecution, the trial court found the revision petitioners A.1 to A.3 ( including A4 and A5 who are not revision petitioners herein ) guilty for the offence under Section 412 IPC, though no charge was framed therefor it against them and sentenced the accused to undergo five years rigorous imprisonment, while acquitting them for the offence under Section 395 IPC, for which a charge was framed against them. It is pointed out on behalf of the revision petitioners that according to the prosecution case, there were only four persons at the time of the incident and as such, the ingredients of the definition of decoity under Section 391 are not attracted as under the said Section the numbers of persons required to be five or more. It is further pointed out on behalf of the revision petitioners that initially the F.I.R. was registered for the offence under Section 394 IPC basing on Ex.P.2 and during the course of investigation and after recovery of the material objects from some of the accused, a charge sheet was laid under Section 395 IPC. It is further pointed on behalf of the revision petitioners that as the material on record disclosed that no offence under Section 395 was made out by the prosecution, the trial court acquitted all the accused for the offence thereunder and considering that a case under Section 412 IPC is made out by the prosecution, the trial court had convicted all the accused for the offence thereunder, which according to the revision petitioners, is incorrect. According to PW.6 who is the de-facto complainant, there were only four persons present at the time of incident. It is so even as per his complaint Ex.P.2. Therefore, it is contended that in such a case, neither provisions of Section 395 IPC nor the provisions of Section 412 IPC are applicable and as such, the trial court had taken an erroneous view of the matter in convicting the accused for the offence under Section 412 IPC. It is the case of the petitioners that the genesis of prosecution case is Ex.P.2 complaint preferred by PW.6; that the de facto complainant did not identify any of the accused in the court during the course of trial. As he did not support the case of the prosecution, PW6 was declared hostile; that PWs 2 to 4, who are alleged to be mediators for recovery of M.Os 1 and 2- Malaysian currency notes under Ex.P.10 seizure report, did not support the prosecution case and as such they were declared hostile and that since mediators PWs 2 to 4 turned hostile, the prosecution ought to have examined other remaining mediators namely viz. Venugopal- LW8, Purshotham-LW11 and another person by name Sattaiah. Therefore, the evidence of PW.8- Investigation Officer is of no consequence to the prosecution case and the same ought not to have been relied upon by the trial court. The learned counsel for the revision petitioners took exception to the observation made by the lower appellate court at Para 20 of its judgment that the evidence of PW.8 with regard to recovery of material objects from the possession of A1 to A.5 in pursuance of their confession almost remains unchallenged. He submitted that they challenged the evidence of PW.8 as to the recovery of M.Os from the possession of any of A1 to A5. In the circumstances, the learned counsel contended hat the trial court was justified in acquitting all the accused for the offence under Section 395 IPC. He further contended that since the author of Ex.P.2- complaint who is PW.6 disowned the prosecution case by turning hostile, as such Ex.P.2 which is the basis of the case of the prosecution loses its sanctity. More so, even PWs. 2 to 4 mediators for the recovery of material objects also turned hostile and did not support the case of the prosecution. According to him, the evidence of PW.8 in the absence of supporting and/or corroborating evidence from any of PWs 2 to 4 and 6 including PW.1 who is also mediator to Ex.P.1-scene of offence and who too turned hostile, cannot salvage the case of the prosecution. Therefore, the learned counsel strenuously contended that the trial court erroneously came to the conclusion in finding A1 to A.5 guilty of the offence under Section 412 IPC. In the circumstances, the leaned counsel further contended that that being the case, the question of presumption under Section 114 of the Indian Evidence Act does not arise. PW6, the de facto complainant, testified as to the fact of his visiting Ganeshnagar to attend birthday party of his friend and as to some persons coming from behind and sprinkling chilli powder in his eyes and as to someone at the show of knife, robbed his ornaments M.Os.1 to 12. He also stated that thereafter, he lodged Ex.P2 – complaint before the police. However, on his turning hostile, he was subjected to cross-examination by the Additional Public Prosecutor during the course of which, he stated that he did not state before the police as in Ex.P3 – Portion of a statement recorded under Section 161 Cr.P.C. A perusal of Ex.P3 does not disclose any earmarked portion said to have been denied by PW6. Therefore, it has to be understood that PW6 has denied his entire statement recorded under Section 161 Cr.PC. since he resiled therefrom, in which case, the entire case of the prosecution falls flat to the ground. In fact, the entire Ex.P3 looses its sanctity. So far as the evidence of PWs.1, 2, 3, 4 and 6 is concerned, they turned hostile and did not support the case of the prosecution as already stated hereinabove. PW5 is the medical witness, who spoke only as to the nature of injuries suffered by PW6. Whereas, PW7 – Sub-Inspector of Police, stated only as to the registration of crime, and thereafter, handing over the investigation of the case to PW8, the Investigation Officer. Under these circumstances, the evidence of PW8 only remains which cannot stand on its own, unless it is corroborated by the evidence of any of the prosecution witnesses. It is to be observed that since none of the prosecution witnesses corroborated the evidence of PW8, it should have no legs to stand, and the same does not save or prove the case of the prosecution on its own. In the above circumstances, the Court finds certain amount of force in the contention raised by the learned counsel for the petitioners-A1 to A3. He has clearly stated that PW6 failed to identify any of the accused. In the above facts and circumstances, it appears that neither the trial Court nor the lower appellate Court have properly appreciated the evidence and other material brought on record in coming to their respective conclusions. The trial Court appears to have committed an error in convicting the accused for the offence punishable under Section 412 IPC. The lower appellate Court also appears to have committed such an error in modifying and reducing the sentence imposed by the trial Court against the revision petitioners- accused. Both the Courts below ought to have extended, at least, the benefit of doubt to the accused if not a clean acquittal. In the above circumstances, this revisional court is of the view that since there is no material on record legally warranting conviction of any of the revision petitioners-accused, they are entitled to be acquitted. Under the circumstances, the judgment under appeal is liable to be set aside and the petitioners are entitled to be acquitted, as such, the Criminal Revision Case is allowed acquitting the revision petitioners-A1 to A3 and the bail bonds executed by them shall stand cancelled. _______________ B.N.RAO NALLA,J -04-2010 Stp