IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1245 of 2009 DATE:30.06.2010 Between: Saif Khan @ Haji @ Abdullah @ Mullah …… Appellant/Accused No.9 And: The State of A.P, rep. By Its Public Prosecutor. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1245 of 2009 JUDGMENT: The accused No.9, who faced trial in S.C.No.248 of 2008 before the Assistant Sessions Judge, Mahabubnagar, is the appellant. He was convicted by the lower Court for offence punishable under Section 395 I.P.C and was sentenced to rigorous imprisonment for five years and fine of Rs.500/-. The only pieces of prosecution evidence against the appellant/A-9 are that of P.Ws-2, 5 and 9. P.W-2 was one of the victims whose van was waylaid and goods being transported in his van were robbed by a group of 9 or 10 persons. P.W-2 was driving a van hired by GATI Transport Company. On receiving information from P.W-2 and another spare driver in the van through P.W-6, P.W-1 came to the spot and gave Ex.P-1 report to P.W-8 Sub Inspector of Police, Addakal Police Station, who registered the same as case in Crime No.29/2006 and issued Exs.P-6 F.I.R. P.W-9 who is the Inspector of Police is the main investigating officer. P.W-9 after arrest of A-9, got his alleged confessional statement recorded under the cover of Ex.P-3 mediators’ report in the presence of two mediators including P.W-5. In pursuance of the alleged confessional statement, there is no recovery of any stolen property. Therefore, Ex.P-3 confession panchanama and evidence of P.Ws 5 and 9 with regard to the alleged confessional statement are hit by Sections 25 and 26 of the Indian Evidence Act. There is no part of the statement contained in Ex.P-3 which is saved under Section 27 of the Indian Evidence Act. Therefore, it is a totally inadmissible and irrelevant evidence. 2) Second piece of evidence relied upon by the lower Court in favour of the prosecution is that of P.W-2. In fact, P.W-2 and another driver were suspected by the police as the original culprits and they were kept in custody by the police for ruling out their complicity in this case. As the matter now stands, there is no dispute or doubt about the decoity. But, the question is whether A-9 is one of the culprits who participated in the offence. The offence took place on 07.05.2006 during night time at about 2.30 A.M. P.W-2 in his examination-in-chief on 23.10.2008 deposed that A-9 who was present in Court was also one of the persons who was present at the time of commission of this offence. Thus, P.W-2 identified A-9 as one of the culprits after 2 years 5 months of the offence. There is no test identification parade conducted by the investigating officer P.W-9 after arrest of A-9 with P.W-2. Identification of A-9 by P.W-2 after a lapse of nearly 2½ years of the offence for the first time in the Court, is a weak piece of evidence. If there was any test identification parade for A-9 with P.W-2, then it would have served as corroborative piece of evidence for identification of A-9 by P.W-2 in Court. This Court is of the opinion that no relieance can be placed on identification of A-9 by P.W-2 in Court after nearly 2½ years for the first time. Simply because there was no electricity pole or light at scene of the offence, it cannot be said that there was no opportunity for P.W-2 to look at faces of the culprits. In any event, P.W-9 the investigating officer thoroughly failed in his duty in conducting investigation of this case on proper lines. The lower Court committed serious error in accepting the alleged confessional statement of A-9 said to have been recorded after his arrest in the presence of a police officer. There is no acceptable and legal evidence to prove the charge under Section 395 I.P.C against the appellant/A-9. 3) In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the appellant/A-9 and acquitting him. A-9 shall be set at liberty at once, if he is not required in any other case. _______________________________ SAMUDRALA GOVINDARAJULU, J June 30, 2010 KSH HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1245 OF 2009 DATE:30.06.2010 ksh