IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD MONDAY THE FIRST DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No. 817 OF 2006. Between: The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad. … Appellant- Complainant V/s. Mohd. Tayyab & 5-Ors. … Respondents- Accused Counsel for the Appellant : Additional Public Prosecutor Counsel for the Respondents : Sri Mohd. Shafiuddin The Court made the following : (Judgment follows next page). THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No. 817 OF 2006 JUDGMENT : This Criminal Appeal is directed against the order of acquittal passed by the Additional Metropolitan Sessions Judge for Trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court, Hyderabad in SC.No.426 of 2001 dated 22-11-2004. 2. Heard the learned Additional Public Prosecutor representing the State. None appears for the respondents-accused. 3. In all six accused were put up for trial by the learned Additional Metropolitan Sessions Judge for the charge under section 395 of IPC. 4. The prosecution case is as follows: PW-1 K. Mallikarjuna Prasad, Manager of Andhra Bank, Penugolanu authorised PWs 3 and 4 at about 02:00 p.m., on 04-02-2000 to remit cash of Rs.Four Lakhs at Andhra Bank, Branch at Tiruvuru. PWs 3 and 4 kept the cash in a suit case and they were proceeding on a scooter to remit cash in Andhra Bank, Tiruvuru branch. PW-3 is the Attender and PW-4 is the Cashier in Andhra Bank, Penugolanu branch. On the way, when they crossed the bridge near Chintalapudi village, A-1 and A-2, who were waiting on the scooter started the scooter and gave dash to the moped and beat them with iron pipe. PWs 3 and 4 fell down from the moped on to ithe road. According to the prosecution, while A-2 stopped the scooter few yards ahead, A-1 came close to PWs 3 and 4 and beat them with iron pipe and thereafter committed theft of Rs. Four lakhs and both of them absconded along with A-3 and A-4, who were waiting in Tata Sumo vehicle at some distance. At about 03:20 p.m., on the same day, PW-4 went to Andhra Bank, Tiruvuru branch with injuries on his body and reported that two persons waylaid, beat them with iron pipe and took away the suit case containing Rs.Four lakhs. Subsequently the Branch Manager sent his staff to the venue of offence and thereafter a report was lodged in Tiruvuru Police Station. A case in Cr.No.8/2000 of Tiruvuru Police Station, Krishna district, was registered and investigated into and after completion of investigation charge sheet was filed against the respondents-accused, 5. In the course of trial before the learned Additional Metropolitan Sessions Judge, PWs.1 to 22 were examined and Exs.P-1 to 33 besides MOs 1 to 4 were marked. 6. After considering the entire evidence on record, the learned Additional Metropolitan Sessions Judge arrived at the conclusion that the prosecution failed to establish the charge under Section 395 of IPC against the respondents and acquitted them of the said charge. 7. From the evidence of the prosecution witnesses brought on record, the learned trial Court recorded the following findings : PW-3 stated in his evidence that he identified two persons A-5 and A-6 in Central Prison, Rajahmundry as the persons who took PW-4 on a scooter to Andhra Bank, Tiruvuru and he also identified A-2 as the person, who drove the scooter. PW-4 identified A-1 at Cherlapalli Jail, as the person, who beat him and he also identified two persons at Central Prison, Rajahmundry, who dropped him at Tiruvuru. 8. As per the evidence of PW-4, A-1 beat him and A-6 took him to Tiruvuru. However, this witness in his cross-examination stated that the persons identified by him at Central Prison, Rajahmundry are the persons, who took him to Tiuruvuru. PW-3 did not identify any person. PWs 5 and 6 identified A-1 and A-4. 9. The learned trial Court further noticed that PW-19, Sri P.Venugopal Rao, (Junior Civil Judge), who conducted test identification parade on 23-9-2000 stated that PWs 3 and 4 identified A-5 and A-6, as the persons, who took PW-4 to Tiruvuru and PW-4 in his evidence stated that A-3 and A-6 took him to Tiruvuru. Further in the croiss-examination PW-4 stated that the persons identified by him at Rajahmundry took him to Tiruvuru. PWs 3 and 4 did not state about A-3 and A-4 who were al;leged to be in the Tata Sumo. PW-5 stated in his evidence that two persons came on a scooter threw away his scooter aside and boarded Tata sumo and he identified two persons at Cherlapalli Jail. According to him, A-4 is the person standing by the side of Tata Sumo vehicle. The learned trial court also noticed that PWs 4, 5 and 6 did not state any overt acts committed by A-1 and A-4. PWs 5 and 6 stated that A-1 and A-6 are the persons, who were standing by the side of the Tata Sumo and two persons threw away scooter and fled away in Tatq Sumo but PWs 5 and 6 have not identified those persons. 10. The learned trial Court observed that PWs 3 and 4 identified A5 and A-6 as the persons, who took PW-3 to Tiruvuru and they did not speak about any offence committed by them. Though A-1 were identified by PW-4 he did not speak about any overt acts committed by A-1. According to PWs 3 and 4 some persons beat him on his head and that of PW-4, two persons, who were coming on scooter from behind pushed the moped with legs, when PWs 3 and 4 fell down the pillion rider beat them again with iron rod and took away the suit case. But no one identified A-2 before the Magistrate. The learned trial Court also noticed the fact that no test identification parade was conducted in so far as A-2 is concerned. According to the learned trial Court, for the first time, PW-3 stated before the trial Court that he kept the scooter in running condition. According to the learned trial Court, A-2 being a stranger to PW-3 it was not possible for PW- 3 to identify A-2 because the offence took place on 04-2-2000 and he identified A-2 in the Court on 01-07-2002 i.e., after two years. 11. The learned trial Court further observed that if actually A-5 and A-6 also came along with A-1 and A-2 in order to commit dacoity their normal course of conduct is to escape in the Tata Sumo along with the remaining accused but they would not take PW-4. Recording the said findings, the learned trial Court reached to conclusion that it cannot be said that A-5 and A-6 either committed the offence itself or abetted the same. Another crucial aspect pointed out by the learned trial Court is that in the charge sheet it is mentioned that A-1 to A-6 escaped in Tata Sumo after commission offence. 12. The most important aspect, which was taken note of by the learned trial Court is that according to the prosecution the Investigating Officer, PW-2 who arrested the accused and recorded confessional statement under panchanama was not examined by the prosecution. In view of several contradictions pointed out hereinabove, the non- examination of the Investigating Officer is fatal to the case of the prosecution. The other important aspect in this case is that though admittedly the suit case containing bank cash of Rs. Four Lakhs was robbed off from PWs 3 and 4 and the incident was reported promptly no amount was recovered from the possession of the accused and the theory put forth by the prosecution is that the respondents-accused had spent away the said amount. The defence theory of the respondents-accused is that the bank officials committed misappropriation of the amount and put forth a theory of robbery to save themselves from prosecution. Thus, as rightly held by the learned trial Court the version of the prosecution consists of material contradictions and inconsistencies and the Investigating Officer was not examined to explain. In a appeal against acquittal, this Court will interfere with the findings reached by the trial Court only when they are perverse or not based on evidence. In the instant case, the findings of the trial Court are based on the evidence and they cannot be said to be perverse. This Court therefore will not interfere with the order of acquittal passed by the learned Additional Metropolitan Sessions Judge for Trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court, Hyderabad. 13. In the result, the order of acquittal passed by the trial Court against the respondents-accused for the charge under Section 395 of IPC is confirmed. The appeal by the State fails and the same is dismissed. ____________________________ JUSTICE R . KANTHA RAO 01-08-2011 I s L THE HONOURABLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No. 817 OF 2006 CIRCULATION No.26 Date:01-08-2011 Court Master: I s L Computer No. 43