HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.652 OF 2007 Dated:21-06-2010 BETWEEN: Garadi Madduleti @ Pullaiah. …Appellant AND State of A.P., Rep. By Public Prosecutor. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.652 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu) This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by accused No.2 against the Judgment, dated 13.04.2007, in Sessions Case No.141 of 2006 on the file of the II Additional Sessions Judge, (Fast Track Court), Ongole, whereunder and whereby, the appellant/accused No.2 was convicted and sentenced to undergo imprisonment for life for the offences punishable under Sections 396 and 460 of the Indian Penal Code, 1860 (for short, "IPC") each and to pay a fine of Rs.500/- each count in default to undergo Simple Imprisonment for six months. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: P.W.1 was doing fabrication contracts in Priyadarshini Spinning Mills at Doddavarappadu of Maddipadu Mandal. He took the house of P.W.2 on lease and was residing along with his wife- Smt.Bhavani Amma Ramadevi (hereinafter referred to as deceased No.1), son and nephew-Unnikrishnan Nayar Anilkumar (hereinafter referred to as deceased No.2). On the intervening night of 18/19.12.1991 at about 12.30 or 1.00 mid night, while he was sleeping D.2 informed him that some thieves came. On that P.W.1 went to the front room and questioned the persons who were standing outside the house as to who they were. Then three persons entered into the house and beat P.W.1 with a stick on his neck. While they were beating, deceased No.1 intervened to rescue P.W.1, on that three persons beat her and D2 with sticks and P.W.1 was also beaten with a stick on his head. On that P.W.1 became unconscious. Thereafter they committed theft of gold chain, bangles, ear tops and ring belonging to D.1 and further took one wrist watch of P.W.1; gold ring belonging to D.2, clothes and cash of Rs.15,000/-. In the meanwhile, on receiving information from the watchman Veleti Rambotlu of Tobbaco Company situated opposite to the house of P.W.1 about the incident, P.W.2 immediately rushed to the scene and shifted the injured to the Government Hospital. On 19.12.1991 at about 5.15 a.m. on receiving requisition from Government Hospital, P.W10 the then III Additional Metropolitan Magistrate, Ongole visited the hospital and recorded the statement of P.W.1, which is marked as Ex.P.11, and as he found D1 and D2 in semi-conscious state and were not able to give statement, he could not record their statement. Ex.P12 are the proceedings. On 19.12.1991 at about 3 a.m., on receiving information about robbery, P.W.8 the then Inspector of Police and P.W.11 the Sub-Inspector of Police both rushed to the scene of offence and then they were informed that the injured were shifted to hospital. At about 6 a.m., H.C.1137 of Ongole I Town handed over the intimation of P.W.1 and after receipt of said intimation P.W.11 recorded the statement of P.W.1 under Ex.P1. Basing on the said statement, P.W.11 registered a case in Crime No.77 of 1991 under Section 395 IPC and issued F.I.R. under Ex.P14. Subsequently, on receiving the death intimation of deceased Nos.1 and 2, P.W.11 altered the section of law to Section 396 IPC and held inquest over the dead body of the deceased Nos.1 and 2 under Ex.P3 and P2 respectively. P.W.8 further prepared scene of observation report. On 19.12.1991 at 4.30 a.m., on requisition, P.W.7-Civil Assistant Surgeon, Government Headquarters Hospital, Ongole examined P.W.1 and issued wound certificate, marked as Ex.P6. P.W.6-Doctor of District Headquarters Hospital, Ongole and P.W.12-Professor of Forensic Medicine, held autopsy over the deceased Nos.1 and 2 respectively, and opined that the cause of death was due to head injury. Exs.P5 and P16 are the post mortem reports respectively. On 04.08.1992 A1 was arrested by Adoni Police, then P.W.8 secured his presence by obtaining permission from the Magistrate. Then A1 was given police custody. During the course of interrogation, he confessed committing the crime along with A2 to A6 and led them to the house of A6, wherein the wife of A6 handed over the gold ornaments given to her by her husband (one gold Bhaut chain, Bangle, Bracelet), which were seized in the presence of P.W.5. On 18.08.1992 A2 was arrested and one gold bangle was seized from his possession under Ex.P4 panchanama. On 25.09.1992 P.W.9 the then Additional Munsif Magistrate held test identification parade in respect of A2 under Ex.P9 test identification parade proceedings. Subsequent investigation was taken over by P.W.13 the Inspector of Police, who, on completion of investigation, filed the charge sheet. 3. The charges levelled against accused No.2 are as under: “Charge No.1: That you namely Garadei Madduleti @ Pullaiah on the intervening night of 18/19.12.1991 along with four or more persons committed dacoity in the house of Sri K.S.Vijay Kumar at Doddavarapadu and you also committed murder of deceased Smt.Bhavani Amma Ramadevi and Unnikrishnan Nayar Anilkumar along with four or more persons and murder was committed while committing dacoity and thereby committed an offence punishable under Section 396 IPC and within my cognizance. Charge No.2: That you namely accused Garadi Mdduleti @ Pullaiah on the above said same date and at same time jointly with other accused K.Ganga Raju, G.Pochaiah, G.Venkataraidu and G.Ganesh committed lurking house trespass by night by entering into the building belonging to Sri K.S.Vijay Kumar at Doddavarpadu which is used as human building and at the time of committing dacoity, you voluntarily caused death of Smt.Bhavani Amma Ramadevi and Unnikrishnan Nayar Anilkumar and thereby committed an offence punishable under Section 460 IPC and within my cognizance.” When the charges were read over and explained to accused No.2, he pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to P.16, besides marking the case properties-M.Os.1 to 7. 6. After the prosecution evidence is closed, accused No.2 was examined under Section 313 Cr.P.C., for which he denied the incriminating circumstances put to him. No evidence, either oral or documentary, has been adduced on behalf of accused No.2. 7. The Trial Court upon considering the evidence of P.W.1 mainly, coupled with the test identification proceedings with regard to the identity of appellant/accused No.2, found that the prosecution could establish the guilt of the appellant/accused No.2 beyond all reasonable doubt, and accordingly, convicted him of the offences with which he was charged. Challenging the same, the present appeal is filed by accused No.2. 8. Now, the point for determination is:- “Whether the prosecution proved its case for the offences punishable under Sections 396 and 460 IPC against the appellant/accused No.2, beyond all reasonable doubt?” P O I N T :- 9. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant contends that as per the evidence of P.W.1 only three persons participated in the commission of the offence and, therefore, Section 396 IPC has no application to the present facts of the case and convicting the appellant/accused No.2 under Section 396 IPC is not at all correct; that except the solitary testimony of P.W.1, there is no other evidence to show that the appellant participated in the commission of offence; that it is not safe to place an implicit reliance on the evidence of P.W.1, with regard to the identity of the appellant as the incident had taken place during mid night and that there was no evidence to show that there was illumination of lights in the house to enable the P.W.1 to identify the assailants; that no descriptive particulars of the appellant had been mentioned anywhere; that nine months after the alleged incident, P.W.1 identified the appellant for the first time when P.W.9 conducted test identification proceedings and that it is the specific case of the appellant that he was shown to P.W.1 one day prior to the test identification proceedings; that there is no evidence to show that dacoity property has been seized from the possession of the appellant and the property, namely gold bangle, allegedly seized from the possession of the appellant, was not marked as the material object; that it is not safe to place implicit reliance on the evidence of P.W.1 with regard to the identity of the appellant for the first time in the court after lapse of 15 years and therefore, he prays to set aside the convictions and sentences recorded against the appellant. 10. On the other hand, the learned Public Prosecutor contends that since the incident has lasted for about half-an-hour, the physical features of the appellant must have been imprinted in the mind of P.W.1 to enable him to recollect the same, and to identify even after lapse of long time; that after noticing the thieves, there was a possibility for P.W.1 to switch on the lights and, therefore, there was a scope of P.W.1 to identify the persons, who participated in the commission of offence; that to test the memory of P.W.1, the investigating agency rightly conducted test identification proceedings by issuing a requisition to P.W.9; that by the time of conducting test identification proceedings, the appellant was in judicial custody and therefore, the question of the constable or the investigating officer, who issued the requisition, showing the appellant to P.W.1 one day prior to the conducting of test identification proceedings, is unbelievable; that even though gold bangle was shown to be seized from the possession of the appellant, but it was not marked as material object; that the evidence of P.W.1 would clearly go to show that the appellant along with two others committed house lurking with an intention to commit an offence; that the investigation discloses the participation of five or more persons and it is a case falls under Section 396 IPC; that after elaborate consideration of the evidence on record, the trial court rightly found the appellant guilty and there are no grounds to interfere with the same. 11. P.W.1 is the husband of deceased No.1 and the nephew of P.W.1 is deceased No.2. The incident took place on the intervening night of 18/19.12.1991 in the rented house of P.W.1. Though it is the case of the prosecution that six persons participated in the commission of offence, during the course of evidence, it came to light that only three persons participated. On coming to know about the incident, P.W.2, who is the house owner, took P.W.1 and two deceased persons to the hospital. The appellant did not deny or dispute about taking place of the incident in the rented house of P.W.1. It is not the case of the appellant that deceased Nos.1 and 2 sustained injuries in some other manner, at some other place and in the hands of some other persons. Though it came to light during investigation that six persons participated in the offence, the trial of the case has been conducted only against A2, in view of the fact that the other accused are said to be absconding, and, the case against A1, A3 to A6 is split up and separated. 12. P.W.3 is one of the inquest mediators, who was present when police conducted inquest over the dead body of deceased No.2 under Ex.P2. The inquest mediators opined that deceased No.2 died as a result of injuries sustained by him. Similarly, P.W.4, is one of the inquest mediators, who was present when police conducted inquest on the dead body of deceased No.1 under Ex.P3. The inquest mediators opined that the deceased died as a result of the injuries sustained by him. 13. P.W.6, the doctor, who conducted autopsy on the dead body of the deceased No.1, found a sutured lacerated injury of 6 x 2 cm x bone deep on the right parietal region and a sutured injury of 4 x 2 cm x bone deep on the occipetal region. On internal examination also there are fractures of right parietal bone and occipetal bone with blood clots. The doctor opined that deceased No.1 would appear to have died of Haemorrahgic and Nerogenic shock due to the above injuries on head and brain and issued Ex.P5 – post mortem certificate. The evidence of P.W.6 and the recitals under Ex.P5 remained unchallenged. The cause of death as spoken to by the Doctor with regard to the homicidal death of the deceased No.1 is established. 14. P.W.12, another Doctor, who conducted autopsy on the dead body of deceased No.2 on 20.12.1991, found the following injuries: 1. Abrasion 2 x 1 cm present on right side lower lip. 2. Abrasion 4 x 2 cms present on the right side chin. 3. Abrasion with contusion 6 x 4 cms present on the front of right side chest below the clavicle. 4. Abrasion 3 X 2 cms present on the middle 1/3rd of right arm. 5. Abrasion 1 X 1 cms present on the dorsom right hand. 6. Linear abrasion 3 cms present on the outer aspect right side abdomen. 7. Sub-scalpular contusion 12-8 cms present on right side head. 8. Tissued fracture 12 cms present both parietal bones with coronal sutures separation on the right side present. 9. Extra dural haematoma 18 x 9 cms present on the right side. 10. Sub-achnoid haemorrhage present on the right side brain. The cause of death according to P.W.12 was due to head injury. He issued Ex.P16 post mortem certificate in respect of deceased No.2. The cause of death as spoken to by P.W.12 and as recited under Ex.P16 remained unchallenged. 15. Now it has to been seen whether the appellant/accused No.2 along with some others has participated in the commission of offence. 16. For the charge under Section 396 IPC, the prosecution has to prove the following ingredients:- 1. The commission of dacoity. 2. One of the dacoits committed murder. 3. That the murder so committed in the commission of dacoity. ‘Dacoity’ is defined under Section 391 IPC, which reads as under:- 391:- Dacoity: - 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”. So from the above provision, it is clear that if five or more persons conjointly commit a robbery, it can be said to be a dacoity. 17. Though the investigation discloses the participation of six persons in the commission of offence, but during the course of evidence, it came to light that only three persons participated. The learned Public Prosecutor contended that according to the recitals in Ex.P11, six persons were present and certain properties have been recovered from them. The evidence of P.W.1 would clearly go to show that only three persons participated in the commission of offence, as he specifically stated that at about 12.30 and 1 O’ clock in the mid night, deceased No.2 came to him and informed that some thieves came and then he came to the front room and asked the persons, who were standing outside, as to who they were; then the said persons immediately entered into his house and beat him. In the cross-examination also he stated that he cannot say as to how the said three persons gained entry into his house. It is not his case that some other persons were waiting outside the house. Therefore, when the assailants are less than five, the question of convicting accused No.2 for the offence under Section 396 IPC, does not arise. Even assuming for a moment, that the evidence of P.W.8 is to be accepted as true, with regard to the recovery of some of the gold ornaments from the other accused, from that mere circumstance alone, it cannot be said that they have participated in the commission of offence. Two possibilities can be inferred when the police recovered certain theft or dacoit properties, one is the possibility of their participation in the commission of offence provided there is some other evidence to connect them with the same, and secondly, they may be said to be receivers of stolen or dacoit properties. Therefore, the learned senior counsel appearing for the appellant is right in contending that mere recovery of certain theft or dacoit articles from the persons, cannot by itself lead to irresistible conclusion that they have participated in the commission of offence. We are therefore, of the view that the necessary ingredients to convict the appellant/accused No.2 of the offence punishable under section 396 IPC have not been established. Hence the conviction and sentence imposed against him for the offence punishable under Section 396 IPC are set side. 18. Coming to the charge under Section 460 IPC against the appellant/accused No.2, the necessary ingredients for the offence under Section 460 IPC are: 1. All persons at the time of committing of lurking house trespass by night or house breaking by night. 2. That any person guilty of such offence shall voluntarily attempt to cause death or grievous hurt to any person. 3. That every person jointly concerned in committing such lurking house-trespass by night or house breaking by night. ‘Lurking house-trespass by night’ is defined under Section 444 IPC, which reads as under: - 444. Lurking house-trespass by night: - Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit “lurking house-trespass by night.” Since the incident had taken place during mid night, identification of assailants assumes importance. The appellant, who is a stranger to P.W.1 along with some others, gained entry into the house of P.W.1 and allegedly caused injuries to P.W.1, deceased Nos.1 and 2. As rightly pointed out by the learned Senior Counsel appearing for the appellant, the entire case rests upon the solitary testimony of P.W.1. When a case rests upon the solitary testimony, it must be unimpeachable, true and trustworthy. If the evidence of a single witness is found to be true and trustworthy, there is no legal bar to base a conviction basing on the solitary evidence. The appellant is totally a stranger. He is not even a resident of the village, where P.W.1 was doing contracts. Therefore, in such circumstances, implicating the appellant falsely due to some rivalry or previous grudges may not arise. The incident is alleged to have taken place during the night time i.e., on the intervening night of 18/19.12.1991 and the appellant was apprehended by police on 18.09.1992. Within one week thereafter the police gave a requisition to P.W.9-Magistrate to conduct test identification proceedings. After following due procedure, the learned Magistrate conducted the test identification proceedings in the Sub-Jail, Ongole. He picked up five non-suspects who are of similar age, height and complexion of the suspect and he asked all the non-suspects to form a line and directed the suspect to stand at any place in the line, then the suspect had chosen his position in the line. Thereafter the witness was brought by the attender of the Magistrate. Among the five persons, P.W.1 identified the appellant correctly. Again he sent the witness outside and asked the suspect to stand at any place in between five non-suspects. He had chosen another position in the line, then again the witness was called. He identified the appellant second time. Though it is stated that the appellant was shown to P.W.1 one day prior to the test identification proceedings, that cannot be accepted in the absence of any other evidence as he was in judicial custody by the date of holding of test identification parade. Therefore, the question of Court constable going to the sub-jail along with the investigating officer may not be correct in the absence of any other evidence. As P.W.9 conducted test identification proceedings in accordance with law, the test identification proceedings under Ex.P9 can be used to corroborate the evidence of P.W.1. 19. Test identification parade is generally conducted by the police during investigation to test the memory of the witness to identify the assailant, who is not known to the witness or in case of a stranger. In view of the fact that the appellant is a stranger to P.W.1, the investigating officer P.W.8 issued a requisition to P.W.9-Magistrate, who conducted the test identification parade. No doubt, P.W.1 has not given any descriptive particulars of the assailants, who participated in the commission of offence, in Ex.P1 or when he was examined by the police under Section 161(3) Cr.P.C. But during the course of investigation, he stated that the participants/assailants are between the age group of 25 and 30 years and one person was stout and another person was lien. 20. A ghastly incident had taken place where the assailants gained forcible entry into the house of P.W.1 and caused several injuries to deceased No.2 and two fatal injuries to deceased No.1. One of the assailants also caused an injury with a stick on the head of P.W.1. He also sustained two head injuries, one injury 4.5 X 3.5 cm on the frontal region and contusion of 2 X 2 cm on the right upper arm. It is not shown that those injuries are sustained by P.W.1 in some other manner, at some other place and at the hands of some other persons. So from the evidence of P.W.1, it is clear that he was present at the time of incident. In the first instance, he was informed by his nephew/deceased No.2 that some thieves came, then through window he saw three persons, who gained entry into the house and committed dacoity of several gold ornaments and cash. The incident must have lasted for not less than half-an-hour. When P.W.1 was informed by deceased No.2 that thieves had come, P.W.1 might have switched on the lights, so as to see the persons present outside the house. In such a case, there was every possibility for P.W.1 to see the assailants and the physical features of the assailants must have been imprinted in the mind of P.W.1 so that he can recollect the same and identify the assailants even after lapse of long time. P.W.1 identified the appellant in the test identification proceedings. Due to non-apprehension of some of the accused and for some other reasons, the trial of the case could not be commenced within a reasonable time. Nodoubt, P.W.1 was examined in the court for the first time after lapse of 15 years. But, at the same time, in our considered opinion that delay cannot be a ground to discredit the testimony of P.W.1 when his memory is tested by the test identification proceedings, wherein P.W.1 has correctly identified the appellant on two occasions. P.W.1 is not an illiterate witness or a layman. He was doing contracts work. Therefore, during discharge of his duties as a contractor he must come across several persons and sometimes, the physical features of the persons who were seen by him imprinted in his mind, for a considerable time. So, it is not difficult for P.W.1 to identify the person after lapse of long time. Therefore, from the identification of the appellant by P.W.1 in the Court supported by test identification proceedings, it can be said that appellant is one of the assailants who participated in the commission of offence. In view of the fact that when two or more persons participated in the house lurking during night time with an intention to commit an offence including the commission of murder, it can be said that the appellant is one of the persons who participated in the commission of offence. Therefore, the conviction of the appellant under Section 460 IPC, cannot be said to be incorrect. Therefore, we have no hesitation in holding that P.W.1 is the witness of truth and he has testified with regard to what transpired on the fateful day of the incident,