IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE-CUM-
ADDL.ASSISTANT SESSIONS JUDGE MANCHERIAL
SITTING AT LUXETTIPET
Present:- Sri. G. Uday Kumar, Prl. Senior Civil Judge-cum- Assistant Sessions Judge, Mancherial. FAC: Addl. Asst. Sessions Judge, Mancherial.
Thursday, this the 18thday of August, 2022
S.C.No.201 of 2016
(On being committed by Sri T.Kanhya Lal, Judicial Magistrate of First Class, Luxettipet by his order dated 19-08-2016 in P.R.C.No.20/2012 in Cr.No.82/2003 of Police Station, Luxettipet).
Name of the Complainant :The State through the Sub- Inspector of Police, Police Station, Luxettipet. Name of the Accused :A-11: Pala Shiva @ Raju @ Prakash, S/o.Venkataswamy, Age: 36 years, Occ: Peddintigolla, R/o.Wadlamudi of Guntur District. Offence alleged against the : Under Sec.395 of IPC accused Plea of the accused :Not guilty Finding of the Court :Not guilty
Order of sentence or acquittal :IN THE RESULT, the accused No.11 is found not guilty for the of- fence punishable U/Sec.395 I.P.C. and he is acquitted for the same under Section 235(1) Cr.P.C. The ac- cused No.11 who is detained in prison, shall be released forth with, if his detention is not required in any other case. Case property if any shall be preserved till the dis- posal of case against accused No.12.
This case is coming on before me for final hearing in the presence of Sri G. Kiran Kumar, Additional Public Prosecutor for the State and Sri Akkala Sridhar, Legal Aid Counsel for Accused and upon hearing the arguments on either side and having stood over for determination till this day, this Court delivered the following:
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J U D G M E N T
The Sub Inspector of Police, PS Luxettipet has filed the charge sheet against the Accused No.10 and 11 for the offence punishable under Sec.395 IPC in Cr.No.179/2002 of PS Luxettipet. Accused No.11 alone tried in the present case.
2.The case of the prosecution in brief is that on the intervening night of 12/13-8-2003, A-10 and A-11 along with A-1 to A-9 and A-12 being the other members of their gang have jointly committed dacoity by gaining entry into the houses of LW-1/M.A. Khadar and his neighbour
LW-7/Nagunoori Venkatesh, armed with knives and sticks, by breaking open the door with a huge boulder and decamped with gold and silver ornaments and also net cash of Rs.20,000/-, all worth Rs.69,800/-. The offenders also inflicted wounds to LW7/Venkatesh and LW9/Sharath while committing the dacoities. Basing on Ex.P-1 report lodged by PW-1,
LW21/B.Mohan, Sub-Inspector of Police, Luxettipet Police Station has registered a case in Cr.No.82/2003 for the offence punishable u/sec.394
IPC, issued First Information Report and took up investigation.
In this case, further investigation was conducted by LW22/V.Sesh
Kumar, Former Circle Inspector of Police, Luxettipet and LW-23
K. Laxmikantham, Circle Inspector of Police, Mandamarri. LW-23 had apprehended accused No.1 to 9 in other crimes and recovered stolen properties from accused No.1 to 9 pertaining to this case also.
Subsequently accused No.1 to 9 were produced in this case on prisoner transit warrants. After completion of investigation, LW24/T. Padmanabha
Reddy, Former Circle Inspector of Police, Luxettipet had filed first charge sheet before the Judicial Magistrate of First Class, Luxettipet vide PRC
No.17/2004 against accused No.1 to 9 only, showing the remaining accused No.10 to 12 as absconders with a view to file additional charge sheet, as and when accused No.10 to 12 were apprehended.
It is stated in the charge sheet that trial was conducted by the
Assistant Sessions Judge (FTC) vide SC No.34/2006 against accused No.1 3 of 16 S.C.No.201 of 2016 to 9. During the trial, accused No.1 to 8 were convicted U/Sec.235(2)
Cr.P.C. for the offence U/Sec.395 IPC while case was split up against accused No.9 vide SC No.200/2006.
On 6-12-2006, LW-16/J.Narayan Rao, the then Sub-Inspector of
Police, CCC Naspur Police Station has apprehended accused No.11 in
Cr.No.94/2006 u/secs.457 and 380, IPC. During the course of interrogation in the said crime, accused No.11 Pala Shiva @ Raju @
Prakash voluntarily confessed about involvement of himself and his brother A-10/Pala Satyanarayaya in this case along with his gang members, besides confessing to their guilt in several other offences of properties, in the presence of mediators LWs-15 and 16 (Sindi
Venugopal and Shaik Khaleel). Accordingly LW-20 Mohammad Sarwar, the then Circle Inspector of Police, CCC Naspur Police Station has arrested accused No.11 and produced him before the learned Judicial
Magistrate of First Class, Luxettipet for his remand to judicial custody.
Further, it is learnt that, A-10/Pala Satyanarayana was taken into custody on prisoner transit warrant by the police of Kamanpur Police
Station of Karimnagar District in Cr.No.69/2004 U/Sec.395, IPC of the said Police Station and he was remanded to judicial custody in it. Thus, in view of the apprehension of absconding accused No.10 and 11,
LW25/C.Shashidhar Raju, the then Circle Inspector of Police, Luxettipet took up further investigation of this case and after completion of said investigation, he filed the additional charge sheet, stating that A-12 was still at large and an additional charge sheet would be filed against him, after his apprehension. Hence the charge.
3.The learned Judicial Magistrate of I Class, Luxettipet took cognizance of the offence punishable under section 395, IPC against
Accused No.10 and 11, registered the same as PRC No.15/2007 against accused No.10, in turn registered it was numbered as S.C.No.180/2012 and after completion of trial it was ended in acquittal on 16-05-2014.
Whereas the case against accused No.11 was split up and registered as
PRC No.20/2012 (present case). After following the procedure prescribed 4 of 16 S.C.No.201 of 2016 in law, furnished copies of documents as contemplated under Sec.207 of
Cr.P.C. to the accused No.11, he committed the same on 19-02-2016 by an order to the Hon’ble Court of Sessions, Adilabad. Later, the Hon’ble
Sessions Court, in turn, registered it as S.C.No.201/2016 and made over
it to this Court for disposal according to Law.
4.After hearing both sides, the accused No.11 was examined under
Sec.228 Cr.P.C. As the accused No.11 denied the allegations, this court framed charges for the offences punishable under Sec.395 IPC against accused No.11 and the contents of the same were read over and explained to him in his vernacular language for which he pleaded not guilty and claimed to be tried.
5.To prove its case, PW.1 to PW.15 were examined, Exs.P1 to 10 were marked. The learned Addl. P.P. has given up the evidence of
LW11/Nimmala Krishna Parandam and LW18/G.Gopichand, I Addl.
Judicial Magistrate of First Class, Warangal. On 06-05-2022 the evidence
of LW1 was closed since it is reported that LW1 is bed ridden due to old age and unable to move. On 10-06-2022 police filed a report stating that the whereabouts of LW15/Venugopal are not known at present there are no chances to trace out his whereabouts, whereas it is reported that LW16/Shaik Khaleel and LW20/Mohd. Sarwar died. To that effect attested copies of their death certificates are filed. On such report the evidence of LWs.15, 16 and 20 is closed. On 16-06-2022 police filed a report stating that LW23/K.Laxmikantham and LW24/T.Padmanabha
Reddy retired from service and their whereabouts are not known and expressed inability to produce the witnesses. On such report the evidence of LW23 and LW24 is closed. On 04-08-2022 police filed a report stating that LW25/C.Shashidhar Raju, official witnesses got retired from service and left to abroad and expressed their inability to produce the witness in near future. On such report the evidence of LW.25 is closed.
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6.After closure of the evidence of prosecution, the accused No.11 was examined under Sec.313 Cr.P.C and he denied the incriminating material put to him, reiterated his innocence and he reported no defence evidence.
7.Heard both sides. Perused the record.
8.Now, the point for determination is:-
Whether the prosecution could establish the guilt of the
accused No.11 for the offence punishable under Sec.395
IPC beyond reasonable doubt?
POINT :
9.The prosecution is required to establish that on the intervening night of 12/13-08-2003, 12 dacoits (including the accused herein who is facing trial) gained entry into the houses of LW1/M.A.Khadar and
LW7/Nagnoori Venkatesh by broke opening the house doors with a boul- der and decamped with gold and silver ornaments and net cash of
Rs.20,000/-, all worth Rs.69,800/-, by inflicting wounds to
LW7/Venkatesh and LW9/Sharath. It is further to establish that part of the stolen property recovered from the accused, thereby the accused committed the offence punishable U/Sec.395 IPC.
10.The learned APP submitted that due to lapse of time and as it is old case the prosecution could not secure the witnesses including the official witnesses who retired from serve and settled at abroad by some of them. He further submitted to decide the matter as per available evi- dence and merits.
11.Whereas the legal aid counsel for the accused submitted that the evidence adduced by the prosecution is not sufficient to prove the guilt of the accused who is facing trial. He further submitted that there is no evidence against the accused and that the prosecution failed to prove the charge against the accused. He prayed to acquit the accused.
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12.It is pertinent to note here that this accused is A11 out of 12 ac- cused involved in this crime. Trial was conducted against A1 to A9 and now this trial is being conducted against this Accused No.11, since it be- ing a split up case.
13.At the cost of repetition, it is relevant here to refer to the case of prosecution before appreciating the evidence on record. On the inter- vening night of 12/13-08-2003, 12 dacoits (including the accused who is facing trial) gained entry into the houses of LW1/M.A.Khadar and
LW7/Nagnoori Venkatesh by broke opening the house doors with a boul- der and decamped with gold and silver ornaments and net cash of
Rs.20,000/-, all worth Rs.69,800/-, by inflicting wounds to
LW7/Venkatesh and LW9/Sharath.
14.It is the further case of the prosecution that LW22/V.Shesh Kumar, the then Circle Inspector of Police conducted investigation,
LW23/K.Laxmikantham, the then Circle Inspector of Police, Mandamarri apprehended accused No.1 to 9 at Mandamarri Railway Station on 07-10-2003 in their crime No.36/2003, for the offence U/Sec.395 IPC.
The accused No.1 to 9 confessed to have committed this offence along with absconding accused No.10/Ravi, accused No.11/Pala Shiva @ Raju (accused herein who is facing trial) and accused No.12/Suresh and that
LW23 recovered some of the stolen property from the possession of ac- cused No.1 to 9 under the cover of panchanama in presence of the me- diators. It is the further case of the prosecution that on 05-12-2006
LW19/J.Narayana, the then Sub-Inspector of Police, PS CCC Naspur ap- prehended the accused No.11/Pala Shiva @ Raju in their Cr.No.94/2016, for the offence U/Sec.457, 380 IPC at Rajeev Gandhi Statue, CCC corner,
Naspur, wherein the accused confessed to have committed this offence along with other accused. The confession-cum-recovery panchanama was recorded by LW19 in presence of the mediators LW15/Sindi Venu- gopal and LW16/Shaik Khaleel. Additional charge sheet against accused
No.11 was filed by LW25/C.Shashidhar Raju, the then Circle Inspector of 7 of 16 S.C.No.201 of 2016
Police, Luxettipet. It is submitted that the accused(A11) herein along with accused No.1 to 9, 10 and 12 are jointly liable for punishment.
15.The prosecution examined the wife of complainant and eye wit- ness as PW1, their eldest son/M.A.Arif, his wife/Rahatunnisa, younger son of complainant/M.A.Moqeem and his wife/Farhana Begum as are ex- amined as PWs.2 to 5 respectively. A conjoint reading of the evidence of
PWs.1 to 5 discloses that they are residents of Luxettipet; in the year 2003 in between 1 am and 2 am about three unknown persons entered into the house of PW1 by broke opening the doors, one person was hold- ing a knife, the other two persons were holding sticks, whereas two more persons were waiting outside of the house, they threatened them to kill and stolen one pustelatadu/kuttikattu from PW1, another kut- tikattu from LW4/PW3/Rahatunnisa; gold rings, silver ornaments and cash of Rs. 20,000/- from secret box. According to PW1, after about 3 to 5 years of the incident, police informed that some of their stolen prop- erty was recovered. They took back their property i.e.,two gold kut- tikattu and gold rings from the court. According to them, now they are not possessing the gold ornaments since recently they sold the same as money required for surgery of her husband. PW1 states that earlier she produced the property before the court while recording her evidence in the main case of split up case. The wife of injured and eye witness by name Nagnoori Satyamma, her son/another injured/Nagnoori Sharath are examined as PWs.6 and 7.Their evidence discloses that they are res- idents of Luxettipet; in the year 2003 three unknown persons entered into their house by broke open the main door and assaulted with a stick on the head of LW7/Venkatesh and took gold pustelatadu from the neck of PW6; since PW7 tried to rescue LW7, the accused also assaulted on him, as a result he received injury on his left shoulder. According to
PW6, she took back the stolen property/pustelatadu from the court and they have disposed the said gold pustelatadu for the purpose of con- struction of house. All the witnesses spoke about the assault committed by these decoits on LW7/Venkataiah while committing robbery in the house of LW7 in the same night.
8 of 16 S.C.No.201 of 2016
16.From the evidence of PW6/LW8 and PW7/LW9 it comes to know that in the same night three unknown persons broke open their main door and entered into the house. The unknown persons assaulted on the head of LW7/Nagunoori Venkataiah the husband of PW7 with a stick. Ac- cording to PW7 since he tried to rescue his father/LW7, the offenders as- saulted on him also as a result he received injury on his left shoulder.
The offenders robbed gold pustelathadu from the neck of PW6 and left the house. It further comes to know from her evidence that Police recov- ered her stolen pusthelathadu and she took back the same from the court. According to her, she has disposed the said gold pustelathadu for the purpose of construction of house. From the evidence of the above witnesses it comes to know that LW1/M.A.Khadar who lodged report and
LW7/Venkataiah who is injured died.
17.According to PW1, his father LW1/M.A.Khadar lodged Ex.P1 report with the police regarding the incident. PW2 the son of LW1 identified the
Ex.P1 report. According to PW1, 3 persons entered into the house. She stated that she cannot identify the accused. She further stated that she cannot say whether the accused who is present in the court hall was present among the offenders who entered into their house. PW2 also stated that he cannot identify the accused present in the court hall.
PWs.3 to 7 clearly stated that they cannot identify whether the accused present in the court hall was present among the offenders who entered into their house. Even PW6 and PW7 stated that they cannot identify the accused and they expressed their ignorance about the present accused
No.11. From the evidence of above witnesses the identity of the accused (A11) could not be established.
18.One M.Bhaskar Rao is examined as PW8. According to him, at the request of police, he along with LW11/N.Krishnaprandam acted as medi- ators to the scene of offence conducted at the houses of
LW1/M.A.Khadar and LW7/Venkatesh in connection with decoity that took place on 12-08-2003. According to him, Police recorded the state- 9 of 16 S.C.No.201 of 2016 ment of the injured. He spoke about the Police having prepared crime detail form at scene of offence. He identified the signatures and admit- ted crime detail form. Ex.P2 is crime detail form prepared at the house of LW1, whereas Ex.P3 is the crime detail form prepared at the house of
LW7.
19.The doctor who treated the LW7/Venkatesh and PW7/Sharath is examined as PW9. According to him, on 13-08-2003 on the request of the police, Luxettipet he examined and treated LW7/Venkatesh and found laceration of 3 x 1 cms. on the vertex which is simple in nature caused by blunt object and accordingly he issued medical certificate un- der Ex.P4. Further on the same day, he also examined and treated
PW7/Sharath and found contusion 3x4 cms. on the left arm which is sim- ple in nature caused by blunt object and accordingly he issued medical certificate under Ex.P5.
20.One G.Satyanaraayana is examined as PW10. According to him, at the request of police Luxettipet he took photographs of the scene of of- fence at the house situated at Modela Road in the year 2003 in connec- tion with dacoity that took place on the previous night. Though he stated that he can identify the photographs taken by him if shown to him, the same could not be confronted to the witness by the prosecution as no photographs are available in record.
21.As per the version of prosecution accused No.1 to 9 confessed be- fore PW11/Mdl. Khaleel Pasha and PW12/N.Venkatesh regarding the commission of offence along with accused No.10 to 12. As this accused
No.11 is connected with this case basing on the confession of the ac- cused No.1 to 9, it is necessary to prove the recovery of stolen property seized in pursuance of the Accused No.1 to 9, these witnesses PW11 and PW12 are examined by the prosecution. But when coming to their evidence, PWs.11 and 12 expressed their ignorance about the present case. According to them, police obtained their signatures on some writ- ten papers in the year 2003 without disclosing the reasons. PW12 identi- 10 of 16 S.C.No.201 of 2016 fied his signatures on confession-cum-recovery panchanama of accused
No.1 which are marked as Exs.P6 to P8. Both witnesses denied to have acted as mediators to the confession of accused No.1 and about the confession of accused regarding the commission of this offence and also recovery of stolen property of this case and pertaining to other cases from the accused in their presence. Thus both crucial witnesses failed to support the version of the prosecution.
22.The evidence of PW13 goes to show that on 13-08-2003 at 800 hours he received Ex.P1 report from LW1/M.A.Khadar, on such report he registered a case in Cr.No.82/2003 for the offence U/Sec.394 IPC, issued
FIR under Ex.P9 against unknown offenders; he examined and recorded the statement of LW1 and handed over CD file to LW22/V.Shesh Kumar, the then Circle Inspector of Police, PS Luxettipet for further investiga- tion.
23.The evidence of PW14 goes to show that he worked as Sub-In- spector of Police, PS CCC Naspur at the relevant time of present case.
According to him, on 06-12-2006 he apprehended the accused No.11 (present accused) at CCC Naspur in Cr.No.94/2006 of CCC Naspur and handed over the accused to Circle Inspector of Police, PS Mancherial i.e.,
LW20/Md. Sarwar for further investigation.
24.PW15 was the then Circle Inspector of Police, PS Luxettipet. His evidence goes to show that PW13/B.Mohan, the then Sub-Inspector of
Police of PS Luxettipet received Ex.P1 report from LW1/M.A.Khadar on 13-08-2003 at 800 hours, registered a case in Cr.No.82/2003 for the of- fence U/Sec.394 of IPC and issued FIR under Ex.P9. He examined and recorded the statement of LW1. Later he/PW15 took up the investiga- tion, visited the scene of offence at the houses of LW1 and LW7 situated at Modela road, Luxettipet, examined and recorded the statements of in- jured i.e.,. LW7/Venkatesh and LW8/Sathamma and referred them to
Government Hospital, Luxettipet for treatment. He conducted scene ob- servation panchanamas in presence of PW8 and LW11/Krishna Paran- 11 of 16 S.C.No.201 of 2016 dam. He exhibited the Certified Copy of crime detail form prepared at the house of LW1 and PW6/Sattamma under Ex.P2 and P3. Other than crime detail form he also exhibited attested copy of a separate scene observation panchanama conducted at the house of LW7/Venkataiah.
According to PW15 he also got the scene photographed through
PW10/Satyanarayana at both the houses. However no photographs are available in the record. He spoke to have examined and recorded the statements of LWs.2 to 9 and 14. According to him, he made efforts to trace out the culprits, meanwhile he was transferred. He in his cross ex- amination stated that the descriptive particulars of the accused were not stated by any witness.
25.From a perusal of the record and the evidence of the above wit- nesses it emerges that in total 5 persons participated in the dacoity which took place in the houses of LW1 and LW7 on the intervening night of 12/13-08-2003 at Modela Road, Luxettipet. They entered into the houses of LW1 and LW7 by broke opening the main door with a boulder and committed theft of gold and silver ornaments and net cash. Not only that they assaulted on LW7 and PW7 when they resisted the offend- ers. As per the record, accused No.1 to 9 were apprehended by LW23/
K.Laxmikantham, the then Circle Inspector of Police, PS Mandamarri in their crime. Accused No.1 to 9 confessed about the commission of da- coity pertaining to this case along with accused No.10 to 12 and LW23 recovered the stolen properties from the possession of accused No.1 to 9 in presence of PWs.11 and 12. However, the evidence of LW23 who is crucial witness is not available to the prosecution since his evidence was closed by this court on reporting by the prosecution that he retired from service, his whereabouts are not known at present and expressed their inability to produce the witness. That apart, the two mediators in whose presence accused No.1 to 9 said to have confessed about this accused i.e., accused No.11 and commission of this offence have not supported the version of the prosecution.
12 of 16 S.C.No.201 of 2016
26.The record further discloses that this accused/accused No.11 was apprehended by PW14 on 06-12-2006 at CCC Naspur in their
Cr.No.94/2006 and that PW14 handed over the accused to LW20/Md.
Sarwar. The evidence of LW20, the then Circle Inspector of Police,
Mancherial who is shown to have arrested this accused is not available to the prosecution since as per the report of the prosecution LW20 died.
As per the version of the prosecution, this accused/A11 confessed in presence of LW15/Sindi Venugopal and LW16/Shaik Khaleel to have com- mitted this offence. As per the version of the prosecution LW20 recorded the confession of this accused and seized some of the stolen properties pertaining to various offences committed by the accused at various places including the cases pertaining to CCC Naspur and Mancherial Po- lice Stations. However, the record makes it clear that no property of the present case was recovered from the possession of this accused i.e., ac- cused No.11. That apart, the mediators/LWs.15 and 16 in whose pres- ence the accused said to have confessed are not produced and their evi- dence is closed on a report of the prosecution. Even the LW20 who said to have recorded the confession-cum-seizure panchanama of accused
No.11 could not be examined in view of his death.
27.From the foregoing discussion and on perusal of the record, it comes to know that this accused/accused No.11 was involved in this case in pursuance of the confession of accused No.1 to 9 as well as the confession of accused No.11.
28.In Pancho Vs. State of Haryana, (2011) 10 SCC 165, the question of conviction of an accused on the basis of confession made by another accused and its evidentiary value came for consideration
before the Apex Court and it is held that in dealing with a case against
an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is 13 of 16 S.C.No.201 of 2016 about to reach on the said other evidence. For the convenience, the observations of the said Court are extracted, which run as under:
“15. The law on this point is well settled by catena of judgments of this court. We may, however, refer to only two judgments to which our attention is drawn by Mr. Lalit, learned senior counsel. In Kashmira Singh v. The State of Madhya Pradesh, AIR 1952 SC 159 referring to the judgment of the Privy Council in Bhuboni Sahu v. The King, 76 Indian Appeals 147and observations of Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chukerbutty, 38 Cal. 559this court observed that proper way to approach a case involving confession of a co-accused is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. This court further noted that cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession, he would not be prepared to accept.
16. In Haricharan Kurmi v. State Bihar, AIR 1964 SC 1184 the Constitution Bench of this court was again considering the same question. The Constitution Bench referred to Section 3 of the Evidence Act and observed that confession of a co-accused is not evidence within the meaning of Section 3 of the Evidence Act. It is neither oral statement which the court permits or requires to be made before it as per Section 3(1) of the Evidence Act nor does it fall in the category of evidence referred to in Section 3(2) of the Evidence Act which covers all documents produced for the inspection of the court. This court observed that even then Section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co- accused. Thus, though such a confession may not be evidence as strictly defined by Section 3 of the Evidence Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way. This court further observed that Section 30 merely enables the court to take the confession into account. It is, not obligatory on the court to take the confession into account. This court reiterated that a confession cannot be treated as substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the 14 of 16 S.C.No.201 of 2016 charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right. This Court clarified that though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the Evidence Act, the fact remains that it is not evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.”
29.While that being the settled law regarding the evidentiary value of confession of the co-accused as observed in the above judgments, com- ing to this case, the confession of accused No.1 to 9 and also the con- fession of accused No.11 could not be proved and the identity of the ac- cusedNo.11 could not be established as PWs.1 to 7 failed to identify him. As can be seen from the record and charge sheet, this accused (A11) was not subjected to Test Identification Parade. No property of the present case was recovered from the possession of this accused. Thus the evidence on record failed to connect this accused with the dacoity committed by accused No.1 to 9 in the house of the PW1 and PW6 and the involvement of this accused in the present case. The evidence ad- duced by the prosecution is not sufficient to prove the guilt of the ac- cused No.11 for the offence punishable U/Sec.395 IPC. Hence accused
No.11 is entitled for the benefit of doubt and consequently he shall be acquitted for the charged offence. Accordingly the point is answered.
IN THE RESULT, the accused No.11 is found not guilty for the of- fence punishable U/Sec.395 I.P.C. and he is acquitted for the same under
Section 235(1) Cr.P.C. The accused No.11 who is detained in prison, shall be released forth with, if his detention is not required in any other case.
15 of 16 S.C.No.201 of 2016
Case property if any shall be preserved till the disposal of case against accused No.12.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in the open Court on this the 18 th day of August,
2022.
PRL.SENIOR CIVIL JUDGE-CUM-
ASST. SESSIONS JUDGE, MANCHERIAL
FAC: ADDL. ASSISTANT SESSIONS JUDGE
MANCHERIAL
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For prosecution:-
PW1Shemeemunnisa/Wife of complainant and eye witness PW2M.A.Arif/Eldest son of complainant and eye witness PW3Rahatunnisa/Wife of complainant and eye witness PW4M.A.Moqeem/Younger son of complainant and eye witness PW5Farhana Begum/Wife of PW4 PW6Nagnoori Satyamma/Wife of injured PW7Nagnoori Sharath/Son of PW6 and injured PW8Miryala Bhaskar Rao/Panch witness for scene of offence panchanama PW9Dr.Victor Dinesh/Medical Officer PW10Satyanarayana/Photographer PW11Mohd. Khaleel/Panch witness for confession-cum-seizure panchanama PW12Nerella Venkatesh/Panch witness for confession-cum-seizure panchanama PW13B.Mohan/Investigating Officer PW14J.Narayana/Investigating Officer PW15V.Sesh Kumar/Investigating Officer
For defence:- NIL
EXHIBITS MARKED
For prosecution:-
Ex.P1Certified copy of report dated 13-08-2003 Ex.P2Certified copy of crime detail form pertaining to the scene of offence that took place at the house of LW1/Quadar Ex.P3 Certified copy of crime detail form pertaining to the scene of offence that took place at the house of PW6 Ex.P4Wound certificate of LW7/N.Venkatesh 16 of 16 S.C.No.201 of 2016
Ex.P5Wound certificate of PW7/N.Sharath Exs.P6Signatures of PW8 on attested copy of confession-cum- to P8seizure panchanama of A1/Sammaiah Ex.P9Certified copy of First Information Report Ex.P10Attested copy of scene observation panchanama prepared at the houses of LW7 and PW6
For defence:-NIL
MATERIAL OBJECTS MARKED
NIL
PRL.SENIOR CIVIL JUDGE-CUM-
ASST. SESSIONS JUDGE, MANCHERIAL
FAC: ADDL. ASSISTANT SESSIONS JUDGE
MANCHERIAL