THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL NO.584 OF 2010 JUDGMENT: 1 This criminal appeal is directed against the judgment dated 12.01.2007 in S.C.No.332 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.47 of 2002 alleging in brief, as follows: 4 On the intervening night of 18/19-06-2002 at 03-00 a.m. unknown offenders numbering about six armed with knives came to the house of the defaco complainant who was sleeping in front of his house and tied him with lungi and threatened him that are annalu and asked the almyrah keys, and took him inside the house and woke up his wife, asked her the almyrah keys and when she refused to give and made alarm, the culprits took away gold pusthela thradu weighing 2 ½ tolas and two pairs of ear studs weighing 2 ½ tolas and beat her and threatened to stab her with knife. Later the offenders opened the almyrah and took away chandraharam weighing 3 ½ tolas, rings weighing 1 tola and ½ tola, ear studs weighing 1/4th tola, three silver kunkuma baranis, silver chains weighing 4 tolas and net cash of Rs.2,000/- and confined the complainant and his wife inside the house and locked from outside. Later the culprits entered the house of one Bodireddy Raghavareddy and threatened him and took away 7 tolas of gold and net cash of Rs.6,000/- and subsequently they went to the house of one Malla Adireddy and threatened his in laws and took away gopi thradu weighing 3 ½ tolas and net cash of Rs.31,800/-. The total value of the property lost in these three incidents was Rs.1,36,325/-. On receiving the complaint from the complainant, P.W.1 registered a case no Cr.No.47 of 2002 and inspected the scene of offence, examined the witnesses, recorded their statements and prepared rough sketch of the scene in the presence of mediators P.W.6 and two others and sent P.W.2 the wife of the complainant to the Government Civil Hospital, Mulugu for treatment and report. On 23.12.2004 A.1 to A.3 were arrested and their confessional statements were recorded in the presence of mediators. On 05.02.2005, A.1 to A.3 were produced in this case on P.T. warrant. Based on the said statements, the police have seized several gold ornaments. On 02.07.2005, the learned III Additional Judicial Magistrate of I Class conducted test identification parade and prepared the proceedings during which A.1 and A.4 were identified by the witnesses. P.W.14, the doctor who treated P.W.2 issued wound certificate Ex.P.8 opining that the injury is simple. After completion of investigation charge sheet was filed against A.1 to A.6. The learned Magistrate took cognizance of the same in PRC No.52 of 2005 for the offence punishable under section 395 of IPC. Later A.1 and A.4 were committed to the court of Sessions for taking trial as the other accused were absconding. The learned Assistant Sessions Judge to whom the case in S.C.No.332 of 2006 was made over framed charge under section 395 of IPC to which A.1 and A.4 pleaded not guilty. 5 In support of its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to 8. 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 18.06.2002 and the accused was arrested two and half years 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 three years 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. The testimony of P.W.1 who gave the complaint, and the other witnesses P.Ws. 1 to 5 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. 11 to 13 coupled with the evidence of the mediators P.Ws. 7 and 8 and panchanamas Exs.P.6 and P.7 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 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 Rs.1,36,325/-. 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 the appellant has already undergone. The appellant shall be set at liberty if not required in any other crime. -------------- 28.04.2010 Kvsn