IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIRST DAY OF DECEMBER, TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1008 OF 1999 Between: The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant AND K. Karunaprakash & 2 others ..... Respondents/Accused The Court made the following: JUDGMENT: This Criminal Appeal, under Section 378 (3) and (1) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed by the State against the judgment, dated 08.02.1999, in Sessions Case No.364 of 1998, on the file of the learned Principal Assistant Sessions Judge, Tirupati, whereunder and whereby the Respondents/Accused Nos.1 to 3 were found guilty of the offence punishable under Section 411 of the Indian Penal Code, 1860 (for short, “I.P.C.”), accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of two years each and to pay a fine of Rs.1,000/-, in default to suffer Simple Imprisonment for a period of 3 months each, while holding them not found guilty of the offence punishable under Section 392 read with 397 I.P.C. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: On 30.07.1997 at about 7.15 p.m., Accused Nos.1 to 3 boarded into the R.T.C. bus bearing No.AP 9Z 7662 plying between Tirupati and Tirumala, and when the bus reached a milestone near 11 Kilometers, Accused No.2 took out a knife and threatened the driver to stop the bus. After the bus was stopped, Accused No.2 snatched away the gold ring, gold chain and cash of Rs.500/- from P.W.1, who was sitting behind the driver seat. Accused No.2 also stabbed P.W.1 with knife when he resisted him, and also snatched away one pair of ear studs from one S. Madhavi. That the Accused No.1 was armed with an axe and a thing like ball, threatened the passengers and robbed cash of Rs.250/- from one S.Balakrishnan of Perambur, Tamilnadu State. Accused No.3 also robbed cash of Rs.150/- from K.Srinivasulu Reddy of Rayangudem Village, Suryapet Mandal, Nalgonda District. Meanwhile, when another R.T.C. bus overtook the bus in question and on seeing the passengers of that bus approaching towards the crime bus, Accused Nos.1 to 3 got down from the bus and ran away. P.W.1 lodged a complaint, which is marked as Ex.P2, with the police. The police registered a case. The Inspector of Police, C.C.S., Tirupati, arrested Accused No.1 on 20.08.1997 near Leela Mahal at the Tea shop of one Padmanabha Reddy in the presence of Mediators and seized one gold ring from his possession under the cover of Panchanama. Thereafter, Accused No.1 led the police to Chamundeswari Temple, situated at Thummalagunta Cross Roads at about 2.00 p.m. At that place, the police arrested Accused Nos.2 and 3 and they seized gold chain from the possession of Accused No.2 and a gold ring from the possession of Accused No.3 under the cover of Panchanama. On 23.08.1997, the Inspector of Police, C.C.S., Tirumala, arrested Accused No.4 at Vesalamma Temple, Tirupati, on the confessional statements made by Accused Nos.1 to 3 and seized a pair of gold jumki ear studs and a pair of gold white pearl ear studs from his possession, which was sold by the Accused Nos.1 to 3 to him. On the requisition given by the police, the learned IV Additional Munsif, Chittoor, conducted a Test Identification Parade in the Sub-Jail, Chittoor. The passengers and the driver identified Accused Nos.1 to 3 as the persons who participated in the commission of offence and after completion of investigation, the police file the charge sheet. 3. When the charge under Section 394 I.P.C. was framed against Accused Nos.1 to 3, they pleaded not guilty and claimed to be tried. 4. Originally the case was taken on file for the offence punishable under Section 394 I.P.C. as C.C.No.502 of 1997, on the file of the learned II Additional Munsif Magistrate, Tirupati. After examination of P.Ws.1 to 3, the learned II Additional Munsif Magistrate, Tirupati, found that the offence attracts the necessary ingredients under Section 397 I.P.C. Therefore, he committed the case. 5. The learned Sessions Judge took the case on file as Sessions Case No.364 of 1998 and made over to the trial Court. The trial Court framed the charge under Section 392 read with 397 I.P.C. against Accused Nos.1 to 3 and when the charge was read over and explained to Accused Nos.1 to 3 in Telugu, they pleaded not guilty and claimed to be tried. 6. To substantiate its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P10 besides case property M.Os.1 to 4. 7. After closure of the prosecution evidence, the Accused Nos.1 to 3 were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of Accused Nos.1 to 3, no oral evidence was adduced except marking Ex.D1. 8. The trial Court, accepting the evidence of prosecution witnesses, came to the conclusion that Accused Nos.1 to 3 are guilty of the offence punishable under Section 411 I.P.C and accordingly they were convicted and sentenced as stated above. Challenging the same, the present Criminal Appeal is filed by State. 9. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against Accused Nos.1 to 3 of the offence punishable under Section 392 read with 397 I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 10. Learned Public Prosecutor contended that the evidence of P.Ws.1 and 2 is very clear that Accused Nos.1 to 3 participated in the commission of offence; that the evidence of P.W.3, who is the driver of the R.T.C. bus, would go to show that Accused No.2 armed with knife, threatened him to stop the bus and committed robbery; that similarly, the evidence of P.Ws.1 and 4 would go to show that the Accused Nos.1 to 3 robbed their gold ornaments; that further, P.Ws.1 and 4 identified Accused Nos.1 to 3 in the Test Identification Parade conducted by competent Magistrate, and hence, the offence is made out against Accused Nos.1 to 3 under Section 392 read with 397 I.P.C. 11. The offence punishable under Section 392 I.P.C. reads as follows: “Punishment for robbery: Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.” 12. The ingredients of Robbery under Section 390 I.P.C. are as follows: “In all robbery there is either theft or extortion. When theft is robbery: Theft is “robbery” if, in order to the committing of the theft, on in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery: Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person, in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation: The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.” 13. P.Ws.1 and 4 are the owners of M.Os.1 to 4. P.W.7-the Village Administrative Officer, Tirupati, conducted the Test Identification Parade in respect of the properties. P.Ws.1 and 4 identified the same as belonging to them. P.Ws.1 and 4 identified the properties nearly 40 days after the occurrence. The evidence of P.W.7 is clear that P.W.1 identified M.Os.1 and 2 which are gold ring and gold chain and P.W.4 identified M.Os.3 and 4 which are Butta Kammalu and Gold Ring. P.W.7 prepared Exs.P5 & P6- Identification Proceedings. 14. P.W.10-the Sub-Inspector of Police stated that he handed over the case properties to P.W.7 for conducting Test Identification Parade. 15. A plea has been taken up by the Accused Nos.1 to 3 that M.Os.1 to 4 appear to be new ornaments, and therefore, it is contended that they are planted for the purpose of this case. But the evidence of P.Ws.1 to 4 would clearly go to show that they used to wear M.Os.1 to 4 occasionally and therefore, M.Os.1 to 4 look like new ornaments. Hence, the contention of Accused Nos.1 to 3 cannot be accepted. 16. Another discrepancy as observed by the trial Court is that Accused Nos.1 to 3 have taken a plea that it is not possible for P.W.1 to identify the case properties in the Test Identification Parade as well as to identify Accused Nos.1 to 3 at one and the same time. But the evidence of P.W.1 would go to show that she identified Accused Nos.1 to 3 in the Sub-Jail, Chittoor, in between 9.00 a.m. and 10.00 a.m. Whereas, she identified M.Os.1 and 2 at the office of P.W.7 at 5.00 p.m. The evidence of P.W.4 also would go to show that she identified the case properties in the evening hours. Therefore, the discrepancy is not shown to be a serious discrepancy which would go to the root of the prosecution case. 17. Now the question is whether P.Ws.1 to 4 could be in a position to identify the assailants after a lapse of long time? A Test Identification Parade was conducted by P.W.8. Normally, the Test Identification Parade will be conducted to test the memory of a witness with regard to the physical features and identity of the accused participated in the commission of offence. It is not a substantive piece of evidence so as to base a conviction on the sole basis of Test Identification Proceedings. It can only be used to corroborate the evidence of prosecution witnesses who participated in the Test Identification Proceedings. 18. According to P.W.8, P.Ws.1 to 3 identified Accused Nos.1 to 3 as their assailants. Similarly, P.W.4 identified Accused Nos.1 & 3. Ex.P9 is the Test Identification Proceedings. 19. A plea has been taken in the trial Court by Accused Nos.1 to 3 that they were shown to the witnesses prior to the Test Identification Parade. It is not in dispute that at the time of incident, it was dark. The evidence of P.Ws.1 to 3 would go to show that the driver was threatened by Accused No.2 to stop the bus and immediately after the driver stopped the bus, he put on the lights inside the bus. But that aspect of the case has not been spoken to by the witnesses when they were examined by the police during the course of investigation. Therefore, the evidence of P.Ws.1 to 3 to that effect that they identified the assailants in the illumination of lights inside the bus appears to be an improvement, and the improvement of prosecution case cannot be discarded as insignificant. Therefore, the trial Court rightly disbelieved the evidence of P.Ws.1 to 3 with regard to the identification of Accused Nos.1 to 3 after lapse of 40 days from the commission of offence. Though during the trial P.Ws.1 to 3 identified Accused Nos.1 to 3 as their assailants, but how could P.Ws.1 to 3 be in a position to identify the assailants after lapse of long time. No proper explanation was given by P.Ws.1 to 3 as to how they could be in a position to identify the assailants. If some striking physical features of the Accused Nos.1 to 3 are seen and those striking features are imprinted in the mind of the prosecution witnesses, then there could not be any difficulty for the prosecution witnesses to identify the assailants even after lapse of long time. It is not such a case where some striking physical features of Accused Nos.1 to 3 were imprinted in the mind of prosecution witnesses. Therefore, the trial Court rightly has not placed any reliance on the evidence of P.Ws.1 to 3 with regard to the identification of Accused Nos.1 to 3. 20. Accused Nos.1 to 3 did not claim that M.Os.1 to 4 belong to them. The evidence of the Investigating Officer would clearly go to show that M.Os.1 to 4 were recovered from the possession of Accused Nos.1 to 3. Once the prosecution established that the assailants were found in possession of stolen articles, the presumption under Section 114 (a) of the Indian Evidence Act, 1872, can be drawn. If that presumption is drawn, then Accused Nos.1 to 3 are either thieves or receivers of stolen property. Basing on the said presumption, it can be said that Accused Nos.1 to 3 committed an offence punishable under Section 411 I.P.C. Accused were rightly convicted under Section 411 I.P.C. by the trial Court. In view of the fact that there is no clinching evidence to show that Accused Nos.1 to 3 participated in the commission of offence, the trial Court rightly acquitted Accused Nos.1 to 3 for the charge under Section 392 read with 397 I.P.C. The said finding is not shown to be erroneous or perverse. Therefore, there are no grounds to interfere with the impugned judgment. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 21. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 08.02.1999, in Sessions Case No.364 of 1998, on the file of the learned Principal Assistant Sessions Judge, Tirupati. _______________ (K.C. BHANU, J) Date: 1st December, 2009 KL