THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Appeal No.451 of 2005 JUDGMENT: The acquittal of the accused 1, 3 and 6 to 8 in S.C.No.37 of 2001 on the file of the Assistant Sessions Judge, Siddipet, by the Judgment, dated 31-12-2001, led the State to file the present appeal through the learned Public Prosecutor. The factual background for the appeal is that eight accused were prosecuted for an offence punishable under Sections 395 and 412 of the Indian Penal Code in Crime No.82 of 1996 on the file of the Chinnakoduru Police Station alleging that the accused 1 to 8 formed the gang to commit dacoitees and accordingly committed dacoitees in the houses of Sri Pasumuri Srinivas Reddy, Sri Yasareni Kistaiah and Sri Yasareni Balamallu at Ankireddypally on the night of 10-12-1996 and robbed gold and silver ornaments and wrist watches etc., worth Rs.30,000/-. On the report of Srinivas Reddy, the crime was registered and a panchanama of the scene of offence was conducted before the mediators. When A1 to A6 were arrested in crime No.16 of 1997 of Velakaduru Police Station by the Circle Inspector of Police, Peddapally, they confessed about this offence also in which A7 and A8 were also involved and in pursuance of their confession, stolen properties were recovered from the possession of A1 to A6 respectively. The 7th accused was produced before the Court in execution of a warrant and the eighth accused also confessed the offence before the mediators leading to the recovery of some stolen properties from his possession under a panchanama on 28-04-1997. The Test Identification Parade was conducted by the Judicial Magistrate of First Class, Siddipet and the Test Identification Parade of the properties was also conducted by independent mediators. The accused and the properties were identified in the parades. After the accused entered appearance and copies of the documents were furnished to them, the learned Magistrate committed the case to the Court of Session after splitting up the case against A2, A4 and A5. The accused denied the charges under Sections 395 and 412 of the Indian Penal Code framed against them and the prosecution examined P.Ws.1 to 9 and marked Exs.P1 to P12 and M.Os.1 to 16 during the trial. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure and they did not produce any defence evidence. The trial Court rendered the impugned judgment firstly noting that the happening of dacoity in the houses of the three victims was not in dispute, but the identity of the offenders was not established. The trial Court took into account that P.Ws.1 to 3 admitted that the offenders covered their faces with masks at the time of the incident. It is also noted that the accused appeared to have been shown to P.Ws.1 and 2 at the Police Station prior to the test identification parade. The trial Court further observed that the accused 3 and 6 being identified before the Court after gap of five years was also improbable and the trial Court further noted that the recovery of the stolen properties from the possession of the accused was not spoken to by the independent mediators and even the Circle Inspector of Police, Peddapally before whom the accused 1 to 6 allegedly made a confession was not examined. As the recovery from the possession of any accused was thus not proved, the trial Court held under the circumstances that the prosecution failed to prove any of the charges against the accused. Challenging the consequent acquittal, it is contended in this appeal that the identification of the accused in the test identification parade by P.Ws.1 to 3 should have been acted upon by the trial Court irrespective of any minor delay and the support to the prosecution version by P.W.4 should have weighed more than the hostility of the other panch witnesses. Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor and Sri C.Praveen Kumar, learned counsel for the respondents/accused are heard at length. The point for consideration is whether the prosecution proved the guilt of A1, A3 and A6 to A8 for the alleged offences punishable under Sections 395 and 412 of the Indian Penal Code? The happening of the dacoitees at the houses of the victims is not seriously in dispute as observed by the trial Court, but what is in dispute is the identity of the persons who committed the dacoitees. P.W.1, who spoke about the incident on the night of 10-12-1996, claimed that he can identify all the offenders, but did not identify the eighth accused present in the Court. He also admitted that he stated to the Police and also before the Court that only seven offenders entered into his house, while the prosecution case is about eight people being involved in the dacoity. P.W.1 also admitted that the offenders with whom he had no prior acquaintance were wearing monkey caps and covering masks and he further admitted about he and P.W.2 being taken to Elkatur Police Station of Karimnagar District and being shown the accused six months after the dacoity which was obviously before the Test Identification Parade conducted by the Magistrate. Any identification after observing the accused in the lock up at Elkatur Police Station will have no probative value and P.W.2, the other victim also gave similar evidence. In fact, he spoke about only five offenders entering his house and not eight as prosecuted and though he identified all the five accused before the Court, he also admitted that he stated to the Police that the offenders used monkey caps as masks for their faces. He also admitted that he never gave any descriptive particulars of the offenders earlier and he also stated about being taken to Elkatur Police Station by the Police along with P.W.1 and identifying A1, A3 and A6 to A8 at the Police Station. He also stated about Police showing the accused to him and P.W.1 and their wives in the Court premises also when they were brought. As such the identification of the accused by P.W.2 also became incredible. P.W.3, the wife of P.W.1, also identified all the five accused before the Court and tried to claim that at the time of the incident the lights were on in their house, which was not specified by P.W.1. She admitted that the offenders covered their faces with monkey caps and that she did not state to the Police about the lights being on at that time. She further admitted not giving the descriptive particulars of the offenders earlier and she did not claim any prior acquaintance with any accused. This evidence of P.Ws.1 to 3, as rightly pointed out by the trial Court, cannot be the basis for any conclusion of involvement of the accused in the dacoitees. When P.Ws.1 to 3 had no previous acquaintance with the accused and when the offenders covered their faces with monkey caps in the night, their being identified as the culprits does not sound convincing, more so, in view of the admitted fact that the accused were shown to the witnesses at the Police Station before the Test Identification Parade and at the Court, while they were being brought before the witnesses entered the witness box. While the evidence of P.W.4, panch witness, was about the panchanamas for the scenes of offence and the identification of the properties, P.W.5 to P.W.7 the panch witnesses for the alleged confessions and recoveries turned hostile and neither concurred with the truth of the alleged confessions of the accused nor did they identify any accused before the Court. The Magistrate, who conducted the test identification parade, stated as P.W.8 that the suspects stated then itself that they were shown to P.Ws.1 to 3 earlier. He also admitted that he did not even question P.Ws.1 to 3 whether the suspects were shown to them earlier. P.W.9, the investigating officer, did not throw any further light on the credibility of P.Ws.1 to 3 identifying the accused and the case of the accused is one of total denial, while the First Information Report or statements to the Police by the witnesses do not indicate any descriptive particulars of the offenders to enable the witnesses to identify the culprits even after lapse of considerable time. The conclusions of the trial Court about unacceptability of the prosecution version firstly due to the incredibility of P.Ws.1 to 3 identifying the accused and secondly due to hostility of the independent witnesses and the non-examination of the Circle Inspector of Police, Peddapally concerning the alleged confessions leading to recoveries cannot be considered to be inappropriate or unreasonable. The acquittal of the accused in consequence due to failure of proof of the offences by the prosecution cannot be interfered with. In the result, the Criminal Appeal is dismissed. ______________________ G.BHAVANI PRASAD, J. 17th November, 2009. Skmr THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Appeal No.451 of 2005 Date : 17-11-2009 Between : The Public Prosecutor, High Court of A.P., Hyderabad .. Appellant And Jaini Banaiah and four others .. Respondents