THE HON’BLE SRI JUJSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.NOs.986 & 1075 OF 2007 COMMON JUDGMENT:-(Per NRLN,J) Both appeals are filed against the conviction and sentence in Sessions Case No.314 of 2004 on the file of the Court of III Additional District and Sessions Judge, (FTC), Nizamabad whereby and whereunder Accused Nos.1 to 3 were convicted for the offence Under Section.396 of the Indian Penal Code, 1860 (IPC) and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for six months. Criminal Appeal No.986 of 2007 was preferred by A-1 and A-3; whereas Criminal Appeal No.1075 of 2007 was preferred by A-2. Originally six (6) accused were charge sheeted and A-4 and A-5 were acquitted and the case against the A-6 was split up as he was found to be absconding. The case of the prosecution is PWs.1, 5 and 6 are brothers, PW.2 is the wife, PW.3 is the son, PW.4 is daughter, PW.7 is the nephew and PW.13 is the mother-in-law of the deceased (Allepa Chinna Karrenna). PW.4 was given in marriage to one Gangadhar. Subsequently, the said Gangadhar committed suicide. The deceased was suspected by the parents of Gangadhar as being responsible for suicide. On the night of 20-07-2004 at 1.30 A.M A-1 to A-6 entered into the house of the deceased and knocked the doors and when they were not open, they were broke open. Then PWs.2 and 3 escaped from the rear side. The thieves entered into the house and on the information given by PWs.2 and 3, PWs.1, 4 to 6, 9 and 12 came to the scene and found the deceased being beaten with sticks and among them A-2 stabbed the deceased with a knife. They also snatched away the gold ornaments of PW.13 and damaged the house-hold articles. The persons who came there apprehended A-1 and was detained. On the next day PW.1 gave a complaint, which is Ex.P-1 and it was registered as a case in Cr.No.137 of 2004 under Section 302 read with 34 IPC and investigation was taken up. A-1 was found unconsciousness due to the beatings by the villagers and he was sent to M.G. Hospital, Armor. During the course of investigation, the statement of the witnesses was recorded. Scene of offence panchanama was conducted and the dead body was sent for Post-mortem examination. On 30-07-2004 A-1 was discharged from the hospital and he was sent to the remand. Subsequently, the section of law was altered into one under Section 396 IPC. During the course of investigation on 05-08-2004 A-2 and A-3 were arrested and Mos.1 and 2 were seized along with other articles. On 04-09-2004 Test Identification Parade (TIP) was conducted by PW.11 and PWs.1 to 3 identified Accused Nos.1 to 3, PW.5 identified A-1 and A-2. On 15-05- 2005 A-5 was arrested and on 23-08-2006 A-4 was arrested. Supplementary charge sheet was filed against A-4. The case was taken on file as PRC No.66 of 2004 and was committed to the court of Sessions and it was made over to III Additional District Court (FTC), Nizamabad. Originally a charge under Section 396 IPC was framed against A-1 and A-3 and after the apprehension of A-4 and A-5, the same charge was framed against them also. The accused pleaded not guilty. On behalf of the prosecution PWs.1 to 20 were examined and marked Exs.P-1 to P-16 and Mos.1 to 8. After the prosecution evidence is over, the accused were examined under Section 313 Cr.P.C and no defence evidence was adduced. After considering the evidence on record, the learned Sessions Judge acquitted A-4 and A-5 and convicted the appellants (A-1 to A-3) herein. Aggrieved, the present appeals are filed. Heard Sri C.Padmanabha Reddy, the learned senior counsel appearing for the appellants and the learned Public Prosecutor. Now the points that arise for consideration are:- 1. Whether the prosecution has proved that the appellants herein have committed the dacoit and caused the death of the deceased? 2. Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable? POINTS:- In support the prosecution case, PW.1 who is the brother of the deceased and the complainant, PW.2 who is the wife of the deceased, PW.3 son of the deceased, PW.4 the daughter of the deceased, PW.5 the younger brother of the deceased were examined and according to them about six persons came to the house during the night time and PW.2 went and called the neighbours. They came and spoke about the beating of the deceased and lost of the property. All the witnesses have identified the accused who were participated in the crime on the date of incident. They also spoke about the apprehension of A-1 and detaining him. PW.6 who is also to be the neighbour supported the version of PW.1 to 5 and also spoke about marriage of PW.4 and the death of her husband Gangadhar. The evidence of PW.7 is also in support the case of the prosecution. The evidence of PW.8 is about the presence at the time of panchanama of the scene and preparation of sketch and inquest over the dead body of the deceased. The evidence of PW.9 is about going to the scene after knowing the incident and apprehending A-1 and other accused who are said to have escaped. The evidence of PW.10 is that A-1 was interrogated by the police in his presence and A-1 gave a confessional statement. The evidence of Pw.11 is about conducting of TIP where PWs.1 to 3 and 5 attended and identified the culprits. The evidence of PW.12 is going to the scene after the incident and seeing the accused. The evidence of PW.13 is that the deceased is her son-in-law and on the date of incident when she was in the house about six thieves came and snatched her gold padigelu and poosalu (Mos.1 and 2) and she fell down and the deceased was beaten and done to death; and that she could not identify any of the accused. The evidence of PW.14 is about the confessional statement of A-2 and A-3 in his presence and recovery of Mos.1 and 2 in pursuance of the confession. The evidence of PW.16 is about conducting P.M examination over the dead body of the deceased and found as many as five (5) injuries and issuing of Ex.P-9 P.M Certificate. The evidence of PWs.17 to 19 is about the investigation done by them in this case. The learned counsel for the appellants contends that the conviction of the accused for an offence under Section 396 IPC is not sustainable and there is no proof of theft of any property and the prosecution has presented a different story in Ex.P-1 and whereas it comes to the evidence, it is varied from the original story and the lower court has extended the benefit of doubt to A-4 and A-5. From the same evidence, the benefit should have been extended to the appellants. According to him, the identification of A-2 and A-3 is not proper and they have been already shown to the witnesses earlier and it was not immediately after the incident and no reliance can be placed on their evidence. On the other hand, the learned Public Prosecutor contends that there is positive evidence; several witnesses identified the accused as the persons who have attacked the deceased and therefore there is no reason to discredit their testimony. Originally the complaint under Ex.P-1 was given by PW.1 alleging that the suspicion was against Dandugula Venkati and Dandugula Gangadu who are said to be having disputes with the deceased because of the death of the son-in-law of the deceased due to differences with PW.4 but when the evidence came and investigation proceeded, a different version has been presented. According to him, the lower court has found that A-4 and A-5 are entitled for an acquittal since their identity is not proved. Evidently, it is not a case of the prosecution that some unknown persons formed a group of more than five members, have committed the offence. In this case it is the specific case of the prosecution that A-1 to A-6 are the participants in the crime and not any other unknown person. Therefore, when specific identified persons were named as assailants and when their participation was disbelieved by the court, then there is no scope for enter into a surmise that some other person or gang of persons were along with the appellants herein. If the finding of the lower court in extending the benefit of doubt to A-4 and A-5 is taken into consideration, then there is no group of five persons in order to attract the offence dacoity for which the offence they are convicted by the lower court. Therefore, there is a legal infirmity in the conviction of the accused persons for the offence under Section 396 IPC as rightly contended by the learned senior Counsel. The evidence appearing against A-2 and A-3 is to the effect that they are found in possession of Mos.1 to 4, which are the properties belonging to PW.13. It is to be mentioned that in the FIR (Ex.P-1) or in the statement of PWs.1 to 6, none of them have stated that PW.13 was present in the house and gold ornaments Mos.1 and 2 belonging to her were snatched away. Therefore, the factum of theft is not alleged and proved at the earliest point of time except the solitary statement of PW.13. If really Pw.13 was beaten and gold ornaments were taken away, one fails to understand as to how such an important information would have failed to be mentioned in Ex.P1. Therefore, we agree with the contention of the counsel for the appellants that theft of Mos 1 & 2 from the PW 13 cannot be accepted and there is any amount of doubt with regard to truthfulness of the said version. Therefore, on this ground also the conviction for a theft does not survive for consideration. The Court is left with the positive evidence of the witnesses about the attack on the deceased by the accused persons. If the attack by A-4 & A-5 is excluded, then we are left with the evidence against A-1, A-2 & A-3. Evidently, none of the accused was known to the prosecution witnesses at the early point of time prior to the offence. The T.I.P was said to have been conducted on 04.09.2004, whereas the incident was happened 20.07.2004. So far as the identification of A-1 is concerned, there cannot be any dispute about the fact that he was arrested at the scene by the witnesses and produced before the police and was also beaten. Therefore TIP so far as the A-1 is concerned is superfluous. The Court has to consider about the identification of A-2 & A-3. Evidently, P.W.5 could not identify A-3. No doubt PWs.1, 2, 3 & 5 identified A-2 along with A-1 and A-3 was also identified by PWs.1, 2 and 3. The claim of the appellants is that they have been earlier shown by the police to the witnesses and consequently they were arrested. It is useful to be noted that though all the witnesses have identified A-1 to A-3 in the court, their descriptive particulars were not given in the FIR or in the statements before the police. Evidently, during night time when the persons have escaped and the persons are not known, the possibility of identifying them after two months appears to be very remote and difficult. Further more, the prosecution case as presented against A-2 and A-3 is that they have snatched the ornaments from PW.13 which version appears to be improbable and not believable as it was not stated at the earlier point of time. When the lower court has extended the benefit of doubt with regard to appreciation of evidence against A-4 & A-5 from the witnesses PWs.1 to 6, 9 & 12, we find no reason as to why such a benefit of doubt should be denied to A-2 & A-3 when particularly the recovery is not believable. Therefore, we find that the participation of A-2 & A-3 and identification of accused persons by the witnesses in the TIP cannot be taken as a conclusive and they are entitled for a reasonable benefit of doubt. So far as A-1 is concerned, it is not in dispute that he came to the scene of offence and was arrested at the scene of offence and he was also member of the group, who attacked the deceased and caused the injuries, causing his death, A-1 did not give any explanation as to the reason why he should come to the house of the deceased at the odd time and participation in the attack on the deceased. His attack on the deceased is proved beyond reasonable doubt by the evidence of PWs.1 to 6 and also his factum of appreciation and the scene of offence on the night. Therefore, we have no hesitation in holding that A-1 has committed the murder of the deceased along with other persons and as such he can be convicted legally for an offence under Section 302 read with 34 IPC since several injuries were caused on the body of the deceased and A-1 also said to have beaten the deceased. We find that the conviction of A- 1 Under Section.396 IPC is not valid and is liable to be set aside and instead A-1 is convicted for an offence Under Section. 302 read with 34 IPC while maintaining the sentence imposed by the lower court. Accordingly conviction of the appellants 2 & 3 (Accused No. 2 & 3) is set aside and they are found not guilty of the offence Under Section.396 IPC and they shall be released forthwith if they are not required in any other case. The conviction of the 1st Appellant (Accused No.1) in Criminal Appeal No. 986 of 2007 for the offence Under Section.396 IPC is set aside and instead he is convicted for an offence Under Section.302 read with 34 IPC while maintaining the sentence imposed by the lower court i.e., to undergo rigorous imprisonment for life besides fine of Rs.1000/-(Rupees one thousand only) in default to suffer simple imprisonment for six months. In the result, Criminal Appeal No.986 of 2007 is partly allowed and Criminal Appeal 1075 of 2007 is allowed. ____________ K.C.BHANU,J ____________________ N.R.L.NAGESWARA RAO,J 20-01-2011 TSNR