THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1379 OF 2008 Dated:27.11.2009 Between: T.Naveen .. Appellant/Accused No.2 And The State of Andhra Pradesh through S.H.O., Keesara P.S., Ranga Reddy District, rep., by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent JUDGMENT: The second accused in S.C.No.364 of 2006 on the file of the IV Additional Sessions Judge, Ranga Reddy District (Fast Track court) filed this appeal against the judgment, dated 29.09.2008 by which he was convicted for the offences punishable under Sections 454 and 380 read with 511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of four years for the offence punishable under Section 454 of the Indian Penal Code apart from a fine of Rs.3,000/- and a sentence of rigorous imprisonment for three years for the offence punishable under Section 380 read with 511 of the Indian Penal Code, apart from a fine of Rs.3,000/-, while it was further directed that the sentences for both the offences shall run concurrently. The factual background for the appeal is that the first accused, who is a habitual offender, planned along with accused Nos.2 and 3 to commit house breaking, and accordingly, came to the house of Smt.K.Rajya Laxmi in an auto at about 12.30 p.m. on 14.10.2004, broke open the lock, entered the house and broke open the almirah. When the three accused were taking the articles with them, one of the labourers working in the vicinity informed J.Nagesh and other neighbours, who tried to apprehend the accused, but the first and second accused by showing a sickle and chisel, respectively, threatening them, attempted to escape. Still they were apprehended notwithstanding the attempts by the first and second accused to murder J.Nagesh and others. On the information of the second accused, third accused was also apprehended, and hence, accused Nos.1 to 3 were prosecuted for the offences punishable under Sections 307, 454 and 380 read with 511 of the Indian Penal Code. The Magistrate committed the case to the Court of Session after the appearance of the accused and after furnishing the copies of documents and accused Nos.1 to 3 pleaded not guilty to the charges framed against them by the Court of Session. After examining PWs.1 to 8 and marking Exs.P1 to P3 and M.Os.1 to 6 during trial, the trial Court examined the accused under Section 313 Cr.P.C., and they denied all the incriminating circumstances appearing in the evidence against them. They did not produce any defence evidence. The trial Court rendered the impugned judgment referring to the oral and documentary evidence on record in detail and concluded that only the offences under Sections 454 and 380 read with 511 of the Indian Penal Code were proved against the first and second accused and consequently imposed the sentences, above referred to, against them, after examining them, on the question of sentence and directing that the period of remand undergone by them shall be set off under Section 428 Cr.P.C. The second accused questioned the said judgment in this appeal, as vitiated by incorrect appreciation of the facts and circumstances and the evidence on record and particularly referred to the failure of any witness to state about any accused possessing an iron rod. PW.1 also had not referred to M.O.1 at all. The non examination of the labourers, who were allegedly the first eye witnesses to the offence, and the absence of proof of any offence under Section 307 of the Indian Penal Code, even according to the trial Court, were also relied as circumstances entitling the second accused to an acquittal. Sri O.L.Narasimham, learned counsel for the appellant, and Sri K.Venkateswar Rao, learned counsel representing the learned Public Prosecutor, are heard and the appellant placed reliance on the judgment of this Court in Criminal Appeal No.386 of 2009, dated 07.04.2009 for the claim that the sentence imposed is grossly disproportionate to the offence even assuming that the judgment of the trial court is not otherwise liable for interference. The learned Judge, while rendering the judgment in Criminal Appeal No.386 of 2009 filed by the first accused in this case, found that the evidence of PWs.1 to 8 probablised about the accused being chased and apprehended. The learned Judge also noted that none of the witnesses had any motive to falsely implicate the accused, and therefore, concluded that there were absolutely no grounds to disbelieve the prosecution case and to interfere with the findings of the trial Court. The conclusions of the learned Judge, which have become final, apply with equal vehemence to the second accused also and the trial Court analyzed the evidence on record very carefully and found that chasing of the first and second accused by the witnesses and apprehending them while they were committing theft in the house of Smt. K.Rajya Laxmi, are not improbablised by any of the circumstances. The trial Court also concluded that the entire incident having happened at midday, there is nothing unnatural in the witnesses identifying the accused at that time and also before the Court, while noting that the third accused was implicated only on the alleged information of the first and second accused and is therefore, not probablised to be really involved, in the absence of any other material. The trial Court also concluded that the discrepancy about seizure of M.O.1 had no great significance when weighed against the otherwise credible evidence of the eye witnesses. The trial Court also found that none of the witnesses received any injuries and none of the alleged injured were examined to probablise any attempt to commit murder by either accused. The appreciation of the evidence by the trial Court does not appear susceptible to any interference under the circumstances. The offence was stated to have occurred at the behest of the first accused, who was a habitual offender, and the second accused was not stated to have had any past criminal record or convictions. The second accused was stated to be aged only 22 years and to have already suffered imprisonment, since the date of judgment till now, apart from the period of detention he had undergone during trial, which also has to be set off under Section 428 Cr.P.C. The learned Judge in Criminal Appeal No.386 of 2009 while maintaining the sentences of fine, reduced the sentence of imprisonment to two years each and the second accused is more eminently entitled at least to such a similar concession, if not more under the circumstances. Therefore, the sentences imposed on the appellant/second accused for the offences punishable under Sections 454 and 380 read with Section 511 of the Indian Penal code are reduced from four years and three years respectively to two years each, respectively, while the sentences of fine imposed respectively for both the offences shall be maintained. The sentences of imprisonment for both the offences shall run concurrently and the period of detention, if any, undergone by the appellant/second accused shall be set off under Section 428 Cr.P.C. Subject to the above modification of the sentences imposed on the second accused, the appeal, otherwise, fails and is dismissed. ___________________ G. BHAVANI PRASAD, J 27th November 2009 KH