THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1219 of 2005 Date: 27.08.2011 Between: Yebulam Ramachandra Rao and another .. Petitioners AND The State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1219 of 2005 ORDER: The revision petitioners are A.1 and A.2 in C.C.No.275 of 2003 on the file of the III Metropolitan Magistrate, Visakhapatnam. They were charged for the offence under Section 392 read with Section 34 of the Indian Penal Code (IPC). The prosecution examined five witnesses. It marked Exs.P.1 to P.3 and MOs.1 to 4. Considering that the case was made out against the accused, the learned trial Judge found both the accused guilty of the offence u/s.392 r/w Sec.34 IPC. She sentenced each of them to Rigorous Imprisonment (R.I.) for a period of one year and also sentenced each of them to a fine of Rs.2,000/- with appropriate default sentence. Aggrieved by the said conviction and sentence, the petitioners/A.1 & A.2 preferred an appeal before the I Additional Metropolitan Sessions Judge, but in vain. Hence, this revision. 2. The point for consideration is whether the conviction and sentence recorded by the trial Court and the appellate Court is sustainable. 3. The case of the prosecution is a) PW.1 is the victim. He is a resident of Pydi Bhimavaram, Srikakulam District. On 22.12.2002, A.1 and A.2 went to the house of PW.1 and more or less threatened PW.1 with a pistol. They demanded Rs.5,00,000/- more or less as ransom. They claimed that they were naxalites. It would appear that A.1 and A.2 are not naxalites. b) PW.1 sought time to honour the demand of A.1 and A.2. He approached his friend PW.2, borrowed Rs.2,00,000/- from him and on 30.12.2002 when the accused again telephoned PW.1 and directed him to go to the RTC complex, Visakhpatnam with the ransom, PW.1 went to RTC complex, and paid Rs.2,00,000/- to the accused. However, PW.1 did not lodge any police complaint at that time. c) A.1 and A.2 subsequently telephoned PW.1 again on 24.02.2003 for further payments. PW.1 consequently went and reported the matter to IV Town Police Station, Visakhapatnam on 28.02.2003. d) Police considered it appropriate to set up a trap. They directed PW.1 to pay the ransom to A.1 and A.2. They took the help of PW.3 and other mediators. PW.1 accordingly paid ransom to A.1 and A.2 at about 8.30 p.m. on 28.02.2003. Almost immediately thereafter, police party pounced upon the accused, caught hold of them, and arrested them. Police seized MOs.1 to 4 from the accused. Subsequently the case was laid. 4. It is the contention of the learned counsel for the revision petitioners/accused that there was no explanation for the delay in lodging the complaint by PW.1 and that the very seizure could be accepted where PW.3 was a stock mediator of police. The learned counsel for the accused also contended that there is discrepancy between the evidence of PW.3 and PW.5 regarding the seizure of the material objects from A.1 and A.2. Finally, it is the contention that where A.1 and A.2 were strangers to PW.1, identification of the accused by PW.1 without a preceding test identification parade could not be accepted. 5. Smt. Zarina Atsar, learned counsel representing the learned Additional Public Prosecutor contended that test identification parade, being a corroborative piece of evidence only is not imperative. She further contended that the case of the prosecution had been proved beyond reasonable doubt. 6. She placed reliance upon Vijay v. State of M.P.[1]. In that case, the Supreme Court observed that test identification parade was not substantive evidence. The Supreme Court referred to earlier decisions of the Supreme Court in para 17 of its judgment and held that test identification parade is only a corroborative circumstance to identify the accused. There cannot be two views on the evidentiary value of the test identification parade. What is important, however, is to notice the effect of the absence of test identification parade. It is fairly settled law that identification of a stranger accused by a witness without preceded by a test identification parade is inherently suspicious and cannot be accepted at its face value without proper corroboration. Therefore, where there is no test identification parade, in this case, the very identification of the accused by PW.1 in the court becomes suspicious. 7. I may, further point out that PW.1 and the prosecution have not made out the case beyond reasonable doubt. The first threat of PW.1 came up on 22.12.2002 by the accused personally going to the house of PW.1. PW.1 did not lodge any police complaint. On the other hand, he complied with the demand of the accused on 30.12.2002 by paying Rs.2,00,000/- to the accused. However, as rightly submitted by the learned counsel representing the Additional Public Prosecutor, it is quite expectable. When the accused posed themselves as naxalites and demanded ransom, it would have been more than natural for PW.1 to pay the demanded amount and forget the incident. 8. However, the incident did not stop there. It is the case of PW.1 that the accused again telephonically threatened him on 24.02.2003. This date is crucial, in the sense that while the threat from the accused telephonically came on 24.02.2003, PW.1 went to the police station on 28.02.2003. There is no reasonable, justifiable and satisfactory explanation from PW.1 as to why PW.1 took four days time before he lodged the complaint with the police. This delayed FIR, which has not been explained effects the veracity of the evidence of PW.1. 9. Added to it, while PW.1 deposed as if he was more or less present at the time of the seizure of the material objects from A.1 and A.2, PW.3 did not speak about the presence of PW.1. PW.1 deposed that while A.1 and A.2 were receiving MOs.1 and 2 cash in a zip bag from him, police surrounded him. PW.3 did not speak about the presence of PW.1 at the time of the seizure. More importantly, Ex.P.2 mediators report, drafted at the time of the seizure of MOs.1 to 4, did not contain the signature of PW.1. If PW.1 was present at the scene of seizure, his signature would have been or should have been obtained by police on Ex.P.2 mediators report. The absence of the signature of PW.1 on Ex.P.2 shows that PW.1 was not present at the scene of offence at the time of seizure of MOs.1 to 4. 10. Added to it, it is not as though A.1 and A.2 received ransom from PW.1. It is not clear that the accused received monies from PW.1, assuming that the story of PW.1 is true. A.1 and A.2 have not offered any explanation. However, it is for the prosecution to show that A.1 and A.2 received ransom from PW.1. No linking evidence is forthcoming in this context. 11. Further, PW.3 admittedly is a stock mediator. He deposed that he acted as a mediator in more than 50 cases for the IV Town Police Station, Visakhapatnam and that he had the habit of signing settlement papers at the police station. Thus, PW.3 is an admitted stock mediator of police. However, the contention of the learned Additional Public Prosecutor is correct that the evidence of a stock mediator cannot be discarded per se. The evidence of such a mediator, however, shall be viewed and scrutinized with circumspection. 12. If the evidence of PW.3 is compared with the evidence of PW.5 Investigating Officer, there are contradictions regarding the seizure of MOs.1 to 4. PW.3 deposed that MOs.1 and 2 cash and a zip bag were seized from A.2 while MO.3 pistol and MO.4 bag were seized from A.1. As against the evidence of PW.3, PW.5 deposed that MOs.1 and 2 were seized from A.1 while MOs.3 & 4 were seized from A.2. Thus, PWs.3 and 5 do not agree as to what material objects were seized from each of the accused, albeit PW.3 is a stock mediator and PW.5 was the Investigating Officer in this case. This contradiction also has not been explained by the prosecution. The contradiction between the evidence of PWs.3 to 5, in this context, creates a doubt whether PW.3 was present at the time of the alleged seizure of the material objects from A.1 and A.2. The benefit of doubt of such circumstance goes in favour of the accused. 13. Added to it, the trial Court convicted the accused for the offence u/s.392 r/w Sec.34 IPC. The appellate Court, on the other hand, convicted the accused for the offence u/s.411 IPC. Neither of the offences has been prima facie made out against the accused where the evidence of PW.3 is doubtful regarding the seizure and where the identification of the accused by PW.1 is doubtful. 14. In that view of the matter, I consider it appropriate to conclude that the trial Court and the appellate Court erred in appreciating the evidence. The prosecution failed in establishing the guilt of the accused, much less, beyond reasonable doubt. This revision, therefore, deserves to be allowed. 15. Accordingly, the Criminal Revision Case is allowed and the accused are found not guilty of the offences under Sections 392 r/w Sec.34 and 411 IPC and are acquitted. Their bail bonds stand discharged. The disposal of the material objects, as recorded by the trial Court, is maintained. The fine amount, if already paid by the accused, shall be refunded to them. ________________ K.G. SHANKAR, J Date: 27.08.2011 Isn [1] (2010) 8 SCC 191