THE HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL Nos.19 & 117 of 2001 Date: 13.8.2010 Crl.A.No.19 of 2001 Between: Dasari Ashok and others. …………Appellants/accused A2 & A3. And The State of A.P. rep by Circle Inspector of Police, Jammikunta P.S., Karimnagar District Rep though Public Prosecutor, High Court of A.P., Hyderabad. …………….Respondent/complainant. THE HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL Nos.19 & 117 of 2001 Date: 13.8.2010 Crl.A.No.117 of 2001 Between: Gandam Buchaiah and another. …………Appellants/accused A1 & A7. And The State of A.P. Rep though Public Prosecutor, High Court of A.P., Hyderabad. …………….Respondent/complainant. THE HON’BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL Nos.19 & 117 of 2001 COMMON JUDGMENT: These Criminal Appeals arise out of the common judgment dated 16.12.2000 passed by the Assistant Sessions Judge, Huzurabad in S.C.No.715 of 1998, whereby and whereunder the appellants-A1, A2, A3 & A7 were convicted for the offence punishable under Section 395 IPC and sentenced to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.1,000/- each in default to suffer simple imprisonment for a period of three months. I have heard the learned counsel appearing for the appellants/ A1, A2, A3 & A7 and the learned Public Prosecutor representing the state. Criminal Appeal No.19 of 2001 is filed by A2 & A3 whereas the Criminal Appeal No.117 of 2001 is filed by A1 & A7. The prosecution case in brief is as follows:- On the intervening night of 12/13.7.1994, A1 to A7 armed with deadly weapons like sticks, knives went to the house of one Madireddy Madhava Reddy (P.W.1) of Shambunipalli Village in Kamalapur Mandal of Karimnagar District, called him by name. On that P.W.2-Kavitha opened the doors, the accused gained entry in to the house threatened the inmates (P.Ws.2 to 4) with dire consequences at knife point and forcibly took away the gold ornaments and they committed robbery of gold and silver ornaments and also cash of Rs.1,100/-. The entire property, which was stolen is said to be worth Rs.30,000/-. After forcibly taking away the said property, the accused decamped with the booty. Thereafter, on a report lodged by P.W.1, Jammikunta Police registered a case in Crime No.63 of 1994 under Section 394 IPC and the offence was investigated into. It is the version of the prosecution that on 24.11.1995 at 13.00 hours, the accused were arrested by the police in the presence of mediators and the property in Sessions Case No.715 of 1998 is recovered from the accused in the presence of the mediators. Subsequently, the property was produced before the Magistrate concerned and the property identified by the Magistrate in the course of the trail by the respective owners of the property namely; P.Ws.2 to 4. It is said that in the course of Test Identification Parade conducted by P.w.9, the Magistrate in Central Prison, Warangal, P.W.1 identified A2, A3, A4 & A7 and P.W.4 identified A1, A2, A3 and A6 and P.W.5 identified A1, A2, A3 & A6. Basing on the recovery of the stolen property and basing on the identification of the above mentioned accused by the said witnesses, the police filed a charge sheet against all the accused/ A1 to A7 alleging commission of offence under Section 395, 397 & 398 IPC. Thereafter, the accused were tried by the Assistant Sessions Judge, Huzurabad by framing the charges under Sections 395, 397 & 412 IPC and to prove the said charges, the production has examined P.Ws.1 to 13 and marked Exs.P1 to P14. Exs.D1 and D2 were marked on behalf of the defence. The learned trial Court mainly relying on the evidence relating to the identification of the accused during the course of test identification parade and recovery of the property allegedly after the arrest of the accused convicted the appellants/A1, A2, A3 and A7 for the offence under Section 395 IPC and sentenced them to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a period of three months. Now the point for determination in these two appeals is whether the conviction and sentence passed by the learned trial Court can be sustained. The offence in the present case according to the prosecution occurred on 13.7.1994 whereas the offence in Crime No.63 of 1994 occurred on 19.10.1995 and that there is a gap of one year. In both the incidents, the accused persons are one and the same. Mediators after recovery of the stolen property are also the same persons in both the cases. The mediators for recovery of the property namely; Goundla Saraiah (P.W.6) and P.W.8-K.Ramesh did not support the prosecution version and according to them nothing transpired in their presence and they had specifically stated before the trial Court that no property was recovered in their presence. When the mediators did not support the factum of recovery of the stolen property, in my view it is not appropriate to entirely rest a decision on the evidence of the investigating officers. Moreover, the investigating officer did not get any identification proceedings of the property conducted through independent witnesses so as to enable the respective owners of the property to identify the stolen property. This is also a serious lapse in the investigation which creates any amount of doubt as to actually whether any witnesses identified the property as belonging into them or not. P.W.9, the Magistrate conducted the Test Identification parade in Central Prison on 23.12.1995 i.e. about 1½ year of the incident. In view of such a long gap between the incident and conducting the test identification parade, the authenticity of the witnesses to identify the culprits is lost and it is quite unsafe to rely on their testimony. Further, P.W.9 the Magistrate admitted in the cross-examination that all the witnesses present at the time of test identification parade stated before him that the culprits were shown to them in the Police Station, Jammikunta. The Magistrate also stated that P.W.4-Jaipal Reddy was present on the date of the incident, stated that the culprits covered the faces with cloth. Under the above mentioned circumstances, in my view it is quite unsafe to convict the appellants basing on the above referred evidence forthcoming in the present case. The evidence does not inspire any confidence and the learned trail Court ought not to have placed any reliance on such evidence for recording the conviction. The appellants, therefore, are entitled for benefit of doubt. Consequently, the conviction and the sentence passed in both the appeals against the accused are set aside. The fine amount, if any paid by them shall be refunded. Accordingly, the Criminal Appeals are allowed. _________________________ JUSTICE R. KANTHA RAO Date:13.08.2010 mrb