THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL NO.627 OF 2010 JUDGMENT: 1 This criminal appeal is directed against the judgment dated 12.01.2007 in S.C.No.334 of 2006 on the file of the court of the II Additional Assistant Sessions Judge, Warangal wherein the appellant /A.4 and another were found guilty of the offence punishable under section 395 of IPC and were convicted for the same under section 235(2) Cr.P.C and were sentenced to undergo rigorous imprisonment for a period of ten years each and pay fine of Rs.500/- each, in default to undergo simple imprisonment for fifteen days. 2 Heard Smt. A. Gayatri Reddy the learned legal aid counsel and the learned Additional Public Prosecutor for the State and perused the record. 3 The Inspector of Police, Bhupalpally filed charge sheet against the appellant / A.4 and another in Cr.No.59 of 2004 alleging in brief, as follows: 4 On the intervening night of 16/17-7-2004 at 01-30 hours unknown offenders numbering about ten in the age group of 25 to 30 years armed with knives came to the house of the defaco complainant and broke open the doors with boulders and then five culprits entered the house and threatened him and took away neck gold chain weighing one Tula and went away bolting the door from outside. Subsequently he came to know that the culprits went to the neighbouring house of Ganji Amruthamma and took away one gold gopithradu weighing 1 ½ tola, silver leg chain weighing 50 tolas, gold ring weighing 1/4th tola from her and also one pair of gold ear studs from the wife of the complainant, who was sleeping in the house of Amruthamma. Later the culprits went to the hiosue of Gurrala Srrenivas Reddy and took away gold pusthela thradu weighing ½ tola, two gold rings weighing 1/4th tola each. Later, the offenders went to the house of Edla Venkataiah and took away two chains weighing one tola each and two gold pusthela thradu weighing 1 ½ tola each, gold gottala golusu weighing one toa, gold ring weighing 1/4t tola, another gold ring weighing ¼ toal each and silver leg chains weighing 15 tolas. The total value of the property lost in the four incidents was Rs.54,000/-. On receipt of complaint from the complainant P.W.14 registered a case in Cr.No.59 of 2004 under section 395 of IPC and P.W.16 inspected the scene of offence, examined the witnesses, recorded their statements and prepared rough sketch of the scene in the presence of mediators. On 23.12.2004 A.1 to A.4 were arrested, and their confessional statements were recorded in the presence of mediators P.Ws.13 and another. Based on the said statements the police have seized one gold ring weighing 5 grams, two gold chains weighing 5 grams each and gold gottala golusu weighing 10 grams under panchanama. On 02.07.2005, P.W.9 the learned III Additional Judicial Magistrate of I Class conducted test identification parade and prepared the proceedings Ex.P.5 during which A.1 and A.6 were identified by the witnesses. After completion of investigation charge sheet was filed against A.1 To A.9. The learned Magistrate has taken cognizance of the same in PRC No.54 of 2005 for the offence under section 395 of IPC. Later A.1 and A.4 were committed to the Court of sessions for taking trial. The learned Assistant Sessions Judge, to whom the case was made over, framed charge under section 395 of IPC against the appellant and another to which they pleaded not guilty. 5 In support of its case, the prosecution examined P.Ws.1 to 16 and got marked Exs.P.1 to 13. 6 On a consideration of the entire evidence the learned Assistant Sessions Judge found the appellant and another guilty of the offence punishable under section 395 of IPC and convicted them to undergo rigorous imprisonment for ten years each and also to pay a fine of Rs.500/- each. Aggrieved by the same the present appeal is filed by the fourth accused in the case. 7 The learned legal aid counsel Smt. Gayatri Reddy appearing for the appellant contended that the incident is alleged to have occurred on the intervening night of 16-07-2004 and the accused was arrested five months later on 23.12.2004 and the test identification parade was conducted on 02.07.2005, and, therefore, the identification of the accused by the witnesses for the said period, which was conducted almost one year after the alleged incident, cannot be relied upon. It is to be noted that the accused are stated to be absconding from the date of incident and it was only on 23.12.2004 they were arrested and test identification parade was conducted about six months later on 02.07.2005. The complainant and the witnesses have stated during the course of investigation that they can identify the accused and furnished descriptive particulars regarding their age, gait and appearance. The learned Magistrate has conducted test identification parade duly following the procedure prescribed. It is not the case of the appellant that the manner in which the test identification parade was conducted was vitiated in any way. Before the learned Magistrate also, the witnesses furnished the descriptive particulars by which they can identify the accused. Ex.P.5 the test identification parade proceedings, coupled with the testimony of P.W.9 would establish the fact that the appellant A.4 was identified in the said parade by P.W.7, the complainant, and other witnesses. The testimony of P.W.7, who gave the complaint, and the other witnesses P.Ws. 1 to 3 does not suffer from any material discrepancy or irregularity so as to render their testimony unworthy of credence, regarding the alleged occurrence. The testimony of the investigating officers P.Ws.14 to 16 coupled with the evidence of the mediators P.Ws.12 and 13 and panchanamas Ex.P.12 and P.13 establish the recovery of stolen articles from the possession of the appellant. The evidence on record, thus, clearly established the presence and participation of the appellant in the alleged offence along with the other accused. The conviction of the appellant-A.4 for the offence under section 395 of IPC, as recorded by the learned Assistant Sessions Judge does not, therefore, call for any interference. 8 Regarding the sentence, the trial court has imposed the sentence of rigorous imprisonment for ten years besides fine of Rs.500/- in default to undergo simple imprisonment for fifteen days. The appellant is stated to be aged 21 years, having wife and children. He has been in judicial custody ever since the date of his arrest on 23.12.2004. The value of the property involved in all the incidents put together is stated to be around 54,000/-. 9 In these circumstances, it is considered that the ends of justice would be met if the said sentence of ten years rigorous imprisonment imposed by the court below is reduced to that of the period already undergone by the appellant, without touching the imposition of fine amount. 10 In the result, the appeal is dismissed, but, however, the said sentence of ten years rigorous imprisonment imposed by the court below against the appellant is modified and the same is reduced to that of the period, which the appellant has already undergone. The appellant shall be set at liberty if not required in any other crime. -------------- 28.04.2010 Kvsn