THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.868 of 2004 Date: 11.02.2011 Between: Kethavat Govind … Petitioner/A.1 AND The State of A.P., through Public Prosecutor, High Court of A.P., Hyderabad. … Respondent/ Complainant THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.868 of 2004 ORDER: As many as five accused were charge sheeted by police for the offence of decoity. However, the case against A.2, A.4 and A.5 was separated. A.1 and A.3 alone faced trial before the learned Assistant Sessions Judge, Bodhan. Holding that the prosecution established the guilt of A.1 and A.3 beyond reasonable doubt for the offence under Section 395 of the Indian Penal Code (‘IPC’, for short), the learned Assistant Sessions Judge convicted both A.1 and A.3 and sentenced each of them to seven years rigorous imprisonment and fine of Rs.2,000/- each. The trial Court also directed that the sentences shall run concurrently with the sentences imposed in another sessions case. 2. Aggrieved by the same, both the accused preferred Criminal Appeal No.12 of 2003 before the learned VII Additional Sessions Judge, Nizamabad at Bodhan. The learned VII Additional Sessions Judge found that the prosecution failed to make out a case against A.3 and acquitted him for the offence u/s.395 IPC and set aside the conviction. The appellate Court confirmed the conviction and sentence recorded by the trial Court against the first accused. Consequently, the first accused preferred the present revision. 3. Sri Ch. Janardhan Reddy, learned counsel for the first accused/revision petitioner inter alia contended that the offence against A.1 and A.3 is common and that there is no reason for the appellate Court to convict A.1 while A.3 was acquitted. I do not consider this contention to be correct. Indeed, the prosecution examined as many as eight witnesses. PWs.1, 2 and 6 spoke about the complicity of the accused. There is no unanimity between PWs.1 and 6 on the one side and PW.2 on the other side. So far as the participation of A.2 and A.3 in the commission of the offence is concerned, while PWs.1 and 6 deposed that the persons involved in the commission of the offence are A.1 and A.3, PW.2, who is the another eye witness for the offence and PW.8 Investigating Officer deposed that the culprits apprehended were A.1 and A.2. Thus, there was no consistency between the evidence of PWs.1 and 6 on the one side and PWs.2 and 8 on the other side as to who participated in the commission of the offence between A.2 and A.3. The appellate Court, therefore, was perfectly justified in granting the benefit of doubt to A.3 and acquitting him. 4. Such a benefit of doubt did not arise so far as A.1 is concerned. PWs.1, 2, 6 and 8 spoke about the complicity of A.1 in the commission of the offence. The contention of the learned counsel for the revision petitioner that the appellate Court was not justified in confirming the conviction against the revision petitioner while A.3 was acquitted on the same evidence, therefore, is not sustainable. 5. However, the question is whether the prosecution has brought home the guilt of A.1 beyond reasonable doubt. 6. It is the case of the prosecution that on the intervening night of 21/22.07.1994, A.1 to A.5 attacked the house of PW.1 with a view to commit docoity. They allegedly proclaimed themselves to be Maoists. They were armed with toy pistols. They were trying to create a picture that they were Maoists and were committing decoity. It is the further case of the prosecution that PWs.1, 2 and others chased and caught hold of A.1 and other accused. This is the sum and substance of the prosecution case. 7. The incident occurred in the house of PW.1. All the accused raided the house of PW.1. PW.2, who is known to PW.1, was said to be at the house of PW.1 at that time. PW.6, who is the wife of PW.1, and the daughter of PW.2 were also present in the house. 8. While so, PW.1 stated that the incident occurred at about 11 p.m. PW.2 claimed that the incident occurred at about 12 midnight. PW.6 supported her husband stating that the incident was at about 11 p.m. The learned counsel for the revision petitioner contended that there is contradiction between the evidence of PWs.1 and 3 on the one side and the evidence of PW.2 on the other side as to the time of the commission of the offence. I agree with the contention of the learned Additional Public Prosecutor that the difference of time mentioned by PWs.1 and 6 on the one side and PW.2 on the other side is one hour at about midnight time. The PWs.1, 2 and 11 leave the impression that they were mentioning the time approximately. I, therefore, consider that the difference of time mentioned by PWs.1, 2 & 6 as to at what time the incident occurred cannot be considered to be a contradiction. 9. Again the learned counsel for the revision petitioner/A.1 contended that PWs.1 and 2 deposed in different tones about the chase given by the witnesses to the culprits. PW.2 was clear in pointing out that the PWs.1, 2 and others chased the culprits to a distance of about 2 k.m. and that Ramachandra Rao, Krishna Murthy, Sattaiah and others also accompanied PWs.1 and 2 in the chase. Ramachandra Rao, Krishna Murthy and Sattaiah were not examined by the prosecution. That apart, PW.1 claimed that they chased and caught hold of A.1 and A.3. PW.1 did not specifically state that the culprits were chased to a distance of about 2 k.m. or were chased to a considerable distance. The learned counsel for the accused would contend that PW.1 deposed that A.1 and A.3 were apprehended at his house. However, this contention is not correct. PW.1 speaks similarly as PW.2 and deposed that the culprits took to heels and that PWs.1, 2 and others chased and caught hold of A.1 and A.3. Thus, there is no contradiction. 10. The oral evidence of PWs.1 and 2 regarding the place where the revision petitioner was apprehended is consistent. At the same time, the prosecution neither examined Ramachandra Rao, Krishna Murthy and Sattaiah nor did it offer any explanation for not examining them. I leave this aspect at this stage. 11. There are other peculiar circumstances of the case. It is the case of PWs.1 and 6 that when the incident occurred, which was around 11 p.m., PW.1 and others gave chase and caught hold of A.1 and A.3. Their claim is that A.1 and A.3 were apprehended at about 4 p.m., that they were brought to the house of PW.1 and that they were later surrendered to Bichkonda Police Station. On the other hand, it is the case of PW.2 that A.1 and A.2 were apprehended at about 4 a.m. and that they were taken directly to police station from the place of where apprehension. PW.2, however, curiously stated that A.1 and A.2 were taken to police station by about 8 a.m. If A.1 and A.2 were apprehended at 4 a.m., and were taken directly to the police station, it is not understandable as to how they reached the police station as late as at 8 a.m. More importantly, the evidence of PWs.1 and 6 and the evidence of PW.2 contradict each other regarding where the apprehended accused were taken from the time of their apprehension. As already pointed out, according to PWs.1 and 6, they were apprehended and were taken to police station after they were initially taken to the house of PW.1. PW.2 stated otherwise. 12. Further, if PWs.1, 2 and others started chasing the accused at 11 p.m. or at about 12 midight, why did it take between 4 hours and 5 hours for PWs.1, 2 and others to apprehend the accused? The vacuum is inevitable since PWs.1, 2 and others agree that A.1 and the other accused were apprehended at 4 a.m. Where PWs.1, 2 and 6 do not agree as to which of the accused was apprehended along with A.1, this inconsistency between the evidence of PWs.1 and 6 on the one side and PW.2 on the other side and the unnatural and unreasonable time that was consumed between the time when the chase started and when the apprehension had taken place create doubt as to whether the witnesses were speaking truthful. 13. It would appear that there is no motive for PWs.1, 2 and 6 to speak against the accused. It would appear that the accused are strangers to PWs.1, 2 and 6. There is other side of the coin for this situation. PWs.1, 2 and 6 identified A.1 in the Court as one of the culprits apprehended. There was no test identification parade preceding the identification of A.1 by these witnesses before the Court. In Dana Yadav @ Dahu and others v. State of Bihar[1], where the accused were not known to the witnesses and where their names were not mentioned in the First Information Register, the Supreme Court considered that identification of the accused in the Court for the first time without preceeded by test identification parade cannot be accepted. The law is well settled in this regard. Where the accused are not known to the witnesses, the identification of the accused for the first time by the witnesses in the Court shall not be accepted as the proof of the guilt of the accused. 14. Indeed, the identification of the accused by PWs.1, 2 and 6 is a circumstance put forth by the prosecution in its favour. If the same is otherwise corroborated, the identification of the accused by these witnesses certainly can be given weight. However, there are contradictions, which I have already pointed out, in relation to PWs.1, 2 and 6. Added to it, PWs.1, 2 and 6 more or less belong to the same family. PWs.1 and 6 are indeed man and his wife. PW.2 is a friend of PW.1, who was sleeping in the house of PW.1 at the time of the commission of the offence. The prosecution failed to examine any other independent witness in support of the prosecution story. 15. Apart from these inconsistencies, the learned counsel for the accused also pointed out the vague statements of the witnesses as to the number of participants in the commission of the offence. While PW.2 stated that three culprits entered the house of PW.1, PW.1 stated that only two culprits entered the house and committed the offence. PW.2 further stated that the culprits who entered the house beat PWs.1, 2 and 6 as well as the daughter of PW.2. PW.1 did not state about this incident. Curiously, while PW.2 deposed that when the culprits beat PW.1 and others, PW.2 and others raised alarm, whereas PW.1 was silent about the raising of alarm. Thus, there is no consistency between the evidence of PWs.1 and 2 even regarding the mode and manner of the incident proper. Added to it, the prosecution examined PWs.4 and 5 to support its story. PWs.4 and 5 did not support the prosecution story. The learned additional Public Prosecutor, in fact, put leading questions to these witnesses with the consent of the Court. Their evidence is of no value in establishing the guilt of the accused. PW.3 is a mediator before whom police examined the scene of offence. Curiously, PW.3 deposed that the tape recorder under MO.3 was found at the scene of offence and that police seized the same, while it is the case of the prosecution that the culprits took away the tape recorder. However, the more important aspect is that PW.3 is merely a witness for examination of the scene of offence by police. PW.7 is another witness who was supposed to know about the incident. He also did not support the prosecution story. 16. Thus, out of the alleged eye witnesses, PWs.1, 2 and 6 supported the prosecution story, whereas PWs.3, 4 and 7 did not support the prosecution version. As already pointed out, there are contradictions between the evidence of PWs.1, 2 and 6. In this backdrop, certainly, it is not safe to convict A.1 for the offence u/s.395 IPC. A.3 was found to be not guilty for the offence by operation of the benefit of doubt. I consider that the same rule of benefit of doubt would operate in favour of revision petitioner/A.1 also. I, therefore, agree with the contention of the learned counsel for the revision petitioner/A.1 that the prosecution did not establish the guilt of the revision petitioner beyond reasonable doubt and that in view of the contradictions in the evidence of PWs.1, 2 and 6 and the absence of the examination of other witnesses by the prosecution, the benefit of doubt shall accord to the accused leading to the acquittal of the revision petitioner. 17. Accordingly, the Criminal Revision Case is allowed. The revision petitioner, who is A.1, is found not guilty by virtue of the operation of benefit of doubt, as the prosecution failed to prove the guilt of the revision petitioner beyond reasonable doubt. The revision petitioner, consequently, is acquitted of the offence u/s.395 IPC. The fine amount, if paid by A.1 already, shall be refunded to him. The bail bonds of A.1 shall stand discharged. _______________ K.G. SHANKAR, J Date: 11.02.2011 Isn [1] 2002 (2) ALD (Crl.) 729 (SC)