THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.219 of 2010 JUDGMENT: This Criminal Appeal by the State under Sections 378 (1) and (3) Cr.P.C. is filed against judgment, dated 26.11.2007, passed in Sessions Case No.2 of 2007 on the file of the learned Principal Assistant Sessions Judge, Srikakulam, whereunder and whereby accused No.5 was found not guilty for the offence punishable under Section 395 I.P.C. 2. The brief facts of the case that are necessary for disposal of the Criminal Appeal may be stated as follows:- On the intervening night of 23/24.05.2004 at about 1.00 a.m., some unknown offenders armed with knives and iron rods gained entrance into the house of P.Ws.1 and 2 and committed theft of gold ornaments. P.W.1 lodged a compliant with the police on the next day at about 9.00 a.m. Basing on the said complaint, police registered a case in Crime No.74 of 2004 under Section 395 I.P.C. and investigated into. The Sub-Inspector of Police observed the scene of offence in the presence of the mediators. On 05.10.2004 at about 2.00 p.m. the Inspector of Police arrested accused No.5 in the presence of the mediators and recovered part of the stolen property. After completion of investigation, police filed charge sheet for the offence under Section 395 I.P.C. against accused No.5. The case against accused No.5 was separated and tried. 3. When a charge under Section 395 I.P.C. was framed, read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 8 and marked Exs.P1 to P9 besides case property M.Os.1 to 3. No oral evidence was adduced on behalf of accused No.5, however, Exs.D1 and D2 were marked. 5. The trial Court, after considering the evidence on record and the facts and circumstances of the case, came to the conclusion that the prosecution failed to establish the offence alleged against accused No.5 beyond all reasonable doubt and accordingly acquitted him. 6. Now the point for determination is whether the prosecution proved the charge under Section 395 I.P.C. against accused No.5 beyond all reasonable doubt? 7. The learned counsel representing the learned Public Prosecutor contended that since the evidence of Inspector of Police shows that accused No.5 was arrested and the stolen articles were recovered from his possession, acquittal of accused No.5 cannot be sustained and hence, she prays to set aside the order of acquittal. 8. On the other hand, the learned counsel for the respondent/accused No.5 contended that since the arrest of accused No.5, recovery of property and identification of accused No.5 were done after lapse of six months from the date of incident, the trial Court rightly acquitted accused No.5 and absolutely there are no grounds to interfere with the same. 9. There is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. Unless it is shown that the findings are perverse or contrary to law or they are not based on any evidence or inadmissible evidence has been taken into consideration or admissible evidence was overlooked, ordinarily this Court would not interfere with the same. 10. When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity. 11. The evidence of P.Ws.1 and 2 would go to show that eight culprits gained entrance into their house and committed theft of gold ornaments and cash. During the course of investigation, P.W.7 conducted test identification parade wherein P.Ws.1 and 2 identified accused No.5 as one of the persons who committed dacoity. P.W.3 is not an eyewitness, but on hearing the cries of P.Ws.1 and 2, he opened the latch of the door and found P.Ws.1 and 2 tied. P.W.4 is one of the mediators, in whose presence police apprehended accused No.5. P.W.8 is the Inspector of Police who arrested accused No.5 on 05.10.2004 at about 4.00 p.m. but he did not state that M.Os.1 to 3 were recovered in pursuance of the statement made by accused No.5. Therefore, there is absolutely no evidence to show that accused No.5 was found in possession of dacoity property. The only available evidence on record is identification of accused in the test identification parade by P.Ws.1 and 2. The identification parade was conducted nearly six months after the date of incident. It is not the case of P.Ws.1 and 2 that an electrical light was burning at the time of the incident and in that illumination of light, the physical features of accused No.5 were imprinted in their minds. P.Ws.1 and 2 for the first time identified accused No.5 after lapse of six months from the date of the incident and even after that, they identified accused No.5 at Court. There is no dispute that accused No.5 is not known to P.Ws.1 and 2 before the incident. The test identification parade would not be substantive evidence as a whole, but it can only be used as corroborative evidence. No explanation is forthcoming from P.Ws.1 and 2 as to how they identified accused No.5 after long lapse of time i.e., during test identification parade and at Court. It is not the case of P.Ws.1 and 2 that because of any special features of accused No.5, they could be in apposition to remember his identity. Therefore, there is no scope or possibility for P.Ws.1 and 2 to identify accused No.5. Furthermore, no recovery of dacoity property was done from the possession of accused No.5. Therefore, the trial Court rightly acquitted accused No.5 for the offence punishable under Section 395 I.P.C. and absolutely, there are no grounds to interfere with the judgment the trial Court. 12. In the result, the Criminal Appeal is dismissed confirming the judgment dated 26.11.2007, passed in Sessions Case No.2 of 2007 on the file of the learned Principal Assistant Sessions Judge, Srikakulam. _______________ (K.C. BHANU, J) 09th February, 2010 GHN