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IN THE COURT OF THE I ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS: PRODDATUR
Present:- Sri K.Surendra Reddy.,
I Additional Judicial Magistrate of I Class, Proddatur.
Thursday, this the 08th day of February, 2024
C.C.No.249 of 2019
State: Represented by the Inspector of police, Proddatur III town P.S. ….Complainant
Vs.
1. Tamisetty Venkata Subbamma @ Chilakala Pyari W/o Chan Basha, aged about 28 years, resident of D.No.1/975, Yerramukkapalli, Kadapacity, Now at Indiraangar, Kadapa City.
2. Shaik Khadra Hussain S/o Haji Moula, aged about 21 years, Coolie, Yerramukkapalli, Kadapa City.
….Accused
This case coming on 06.02.2024 for final hearing before me in the presence of the Learned Assistant Public Prosecutor for the
Complainant and of Sri A.Sudarshana, Advocate for accused and having stood over for consideration till this day, this court delivered the following:-
J U D G M E N T
1. The state represented by Inspector of Police, Proddatur III
Town P.S has filed charge sheet against the accused No.1 and 2 for the offence U/sec.454, 380 and Sec. 411 IPC in Cr.No.31/2019 of Prodatur
III Town P.S.
2. As pellucid from the records, the case of the prosecution episodically revolved around the aspects that, on 07.02.2019 at about 3.00 PM while LW.1 in this case by name Bollavaram Sankaramma, was alone present in the her house bearing D.No.3/934 YMR Colony,
Proddatur Town, she witnessed the accused A.1 herein was going to 2 upstairs to their house, and when she asked as to why A1 is going to the upstairs of the house, for which A.1 told her that she was going for a woman who is residing in the upstairs. Then LW.1 informed to A.1 that the woman who was residing in upstairs was not present in the house. Then the accused No.1 sat on the stair-case for a while and when LW.1 went into the Kitchen, taking advantage of absence of LW.1, the accused No.1 opened the front door lock entered into the house and took the keys from cupboard, opened the iron Almarah and stolen the gold ornaments Viz. (1) 3 layers gold chain (strong Cain) weighing about 60 grams (2) Two Black beads gold bangles weighing about 31 grams, (3) 2 gold rings weighing about 9 grams (4) 1 pair of studs weighing about 2 grams mentioned in the charge sheet worth of
Rs.2,52,000/-. Later while the accused was going out from the house,
LW.1/defacto complainant witnessed her and while seeing the LW.1 the accused A.1 ran away from the house of defacto complainant/ LW.1.
Later after sometime while the defacto complainant/L.W.1 realised that the gold ornaments were stolen by A1 herein she lodged a report
before Proddatur III Town P.S.
Basing on report given by LW.1/Defacto complainant on 07.02.2019 at about 9.30 PM Inspector of Police Proddatur III Town
PS/LW.9 registered a case in Cr.No.31/2019 U/sec.454, 380 IPC and investigated into. During the course of investigation the investigating officer/LW.9 examined LWs.1 to 4 and recorded their statements and also prepared rough sketch scene of offence and on 12.02.2019 at about 9.00 AM on the credible information LW.9/Investigating officer secured the presence of mediators/LWs.6 and 7 and reached to 3 roads junction leads to Chinnamsettpalli village and there he arrested the 3 accused No.1 and 2 in the presence of mediators and recovered the stolen property i.e., (1) 3 layers gold chain (strong Cain) weighing about 60 grams (2) Two Black beads gold bangles weighing about 31 grams, (3) 2 gold rings weighing about 9 grams (4) 1 pair of studs weighing about 2 grams and drafted the seizure mediatorname for arrest of A.1 and A.2 and seized the stolen property mentioned supra.
Later LW.9/Investigating officer sent A.1 and A.2 to judicial remand.
3. On 23.02.2019 on the requisition filed by LW.9/Investigating officer the then II Additional Judicial Magistrate of First Class, Proddatur conducted test of identification parade to identify the accused with
LWs.1 to 4 herein further on conclusion of investigation LW.9 filed charge sheet against A1 for the offence punishable U/sec.454, 380 IPC and against A2 for the offence punishable U/sec.411 IPC.
4. The case was taken on file for the offence u/Sec.454, 380/411 of IPC against the Accused 1 and 2.
5. After the appearance of the accused, the copies of the documents as required u/Sec.207 Cr.P.C. were furnished to them.
6. The accused were examined u/Sec.239 Cr.P.C. and my predecessor in office have framed common charges for the offence u/Sec.454, 380/411 of IPC against A1 and A2, read over and explained to them for which they have pleaded not guilty and claimed to be tried.
Subsequently after completion of trial during the stage of advancing arguments by both sides, basing on the material available on record and as per the charge sheet and allied material thereof filed by the Investigating officer, this court feels that for better appreciation of evidence, a separate charge has to be framed against the each 4 accused, which necessitated this court to invoke 216 of Cr.P.C and accordingly charges have been reframed separately.
Thus a charges have been framed for the offences under Sec.454 and 380 of IPC against A1 and Sec.411 IPC exclusively against A2, for which the accused pleaded not guilty and claimed to have trial. Thereupon the Assistant Public Prosecutor and Defence counsel given their consent by way of submitting a memo stating that the evidence already brought on record is sufficient enough to answer the said charges that were framed against the accused A1 and A2 and no further evidence required to be adduced on their behalf either to substantiate or rebut the allegations leveled against accused A1 and
A2.
7. In order to substantiate the case, the prosecution has examined PWs.1 to 8 and got marked Exs.P1 to P.11. M.Os.1 to 8 are also marked. The learned A.P.P. has given up the evidence of the
B.Balachandra Reddy/LW.2.
Evidence brought on record
The defacto complainant viz., B.Sankaramma/P.W.1 deposed
before this Court that she is residing in YMR Colony, near Sai Baba
Temple, Proddatur town. She can not identify the accused who are standing in the court hall and LW.2 is her husband. On 07.02.2019 while she was alone present in her house and her husband went to
Jammalamadugu and at about 03.00 PM, she came out on hearing conversation of somebody and found one women was sitting on the stairs and was talking on phone and though she witnessed her but her face is not visible to her as she kept phone on her face. Then she 5 again went to inside the house and went to kitchen to do work. After 10 minutes the said women came to her and asked her to inform about her arrival to the persons residing in upstairs and went away. When she questioned her how she came into house for which she replied that as PW.1 did not lock the door she came into her house, and later in hurried manner she escaped from the house. Further she deposed that she can identify A1 who is standing in the court hall is the same person. P.W.1 further deposed that when she verified the Almairah in a room and found missing of 3 layers gold chain, 2 black beads gold bangles, 2 gold rings and 1 pair of ear studs and the said lady might have committed theft of the same. Immediately she came out and shouted and the neighbours and people nearby came out on hearing her shouting. On the same day she went to police station and gave report. Ex.P1 is police report given by her. After 2 or 3 days she came to know through the police that her gold ornaments were recovered and identified the same before the police and admitted that she has taken the interim custody of her gold ornaments i.e., MO1 to M.O.4.
During the chief examination P.W.1 identified the Accused A1 who stood in the Court hall, but in cross examination she admitted that she is aged about 73 years and suffering from Diabeties and B.P and also her eye vision is low and she can not write. P.W.1 further deposed that the scribe of the report is her son-in-law and after drafting of report her son-in-law read over the contents to her. After 15 days of theft of gold ornaments she identified the gold ornaments at Police station.
8. PW.2/V.Sai Prasad the then Mill Leavy Revenu Ispector of
Proddatur in his evidence has stated that he does not know A.1 and A.2 and on 12.02.2019 at about 9.30 AM, while he was present in their 6 office, one III Town P.S constable came to him and asked him to come to police station to act as mediator for seizure of property, for which he agreed and went to III Town Police Station, later he along with LW.6, S.I of police, Inspector of Police, some police constables proceeded in police jeep to Proddatur to Chinnasettypalli route and reached there at about 10.00 am, Police seized some gold ornaments from the persons found therein under the cover of Panchanama. He affixed his signature in Panchanama and he identified his signature on arrest and seizure
Maharzanama dt.12.02.2019 which was marked as Ex.P.2. Since he did not support the case of prosecution the learned Asst. Public Prosecutor requested to treat him as hostile and permission accorded for cross examination and during the course of cross examination, he denied the suggestion that police arrested the accused A1 and A2 in his presence and seized gold ornaments from the possession of the accused and drafted mediatornama to that effect.
9. PW.3/S.Pathe Mohammed the gold smith in his evidence deposed that he is working as Gold smith and while he was present in his shop on 12.02.2019 at about 11.00 am one P.C.No.947 came to him and asked him to measure the gold at a certain place for which he went to Chinnasettypalli road along with weighing machine, where he found one lady and male person, two VROs, C.I of Police and constables are present. He can identify the said lady and male persons.
He stated that the said lady and male person did not present in the
Court. He did not identify the accused No.2 who was present in the
Court hall. He further deposed that in his presence the said lady gave one gold chain to C.I of police weighing about 25 grams, and also gave plastic box containing three steps chain, two gold rings and one pair of 7 gold ear studs, two gold bangles and he weighted the same. The gold three steps chain weight about 60 grams, 02 gold rings weight about 09 grams, one pair gold ear studs weight about 02 grams, two gold bangles weight about 31 grams, later he entered the total details of gold ornaments.
10. PW.4/M.Rajasekhar Reddy the Retired VRO of Proddatur in his evidence deposed that in the year 2018 or 2019 in the month of
February, at about 9.00 AM, while he was present in their office, one police constable came to him and asked him to come to Police station to act as mediator for which he agreed and he went to Police station at about 9.30 am and from there he along with constables proceeded to
Police jeep bypass road Chennasettypalli junction, reached there in between 10.00 am to 11.00 am and while he was sat in the jeep a panchanama was drafted for recovery of gold ornaments and he affixed his signature in panchanama which was marked as Ex.P.3. He identified the signature in confession, arrest and seizure Mahazarnama dt.12.02.2019. Since he did not support the case of prosecution the learned Asst. Public Prosecutor requested to treat him as hostile and permission accorded for cross examination and during the course of cross examination, he denied the suggestion that police arrested the accused A1 and A2 in his presence and seized gold ornaments from the possession of the accused and drafted mediatornama to that effect.
11. PW.5/B.Yanadi Reddy Police Constable, in his evidence stated that he worked as CC Camera Watcher during the period from 2018 to 2021 and on 08.02.2019 in the morning hours while he was on duty,
LW.9 Investigating Officer came to their office and asked him with 8 regard to CC Camera footage on 07.02.2019 at about 3.00 PM., near
Sai Baba Temple, YMR Colony, Proddatur since they have 30 days CC
Camera footage storage. On perusing the CC Camera footage at about 3.00 to 3.30 PM they oberved that one woman wearing red saree coming straightly on that road, in the meantime one scooty came there and she left the place in the scooty. He furhter deposed that he can identify that lady. He further deposed that he gave CC camera footage and photos in a C.D to L.W.9 and Ex.P4/photos eleven in number, M.O.5 is the CD corresponding to Ex.P4 photos. He also stated in his chief examination that S.I of police is the custodian of the CC footage camera and the CC footage will be stored in hard disk and all the activities will be recorded in CC cameras and there are no repairs in CC cameras and He stored the CC footage in CD., what was recorded in CC cameras.
During the Cross examination P.W.5 admitted that the investigation Officer/L.W.9 did not give any written requisition for perusal of C.C. footable by mentioning the C.C.Camera Number he do not know the exact scene of offence and also admitted that in general on perusing the C.C. footage one can not say why the accused were going and to which place they were going. P.W.5 further admitted that he has not given any C.C. footage in pen drive to the investigating
Officer and as per the directions of his higher officials he gave C.C.
footage to the Investigating Officer.
12. PW.6/P.Chandra Sekhar Reddy in his evidence stated that on 07.02.2019 at about 3.00 PM, he started from YMR colony, Sai Bata
Temple road to his house in his scooty bearing NO.AP04-BB-2996 and 9 while he was proceeding on his scoorty, one lady asked lift at Sai baba temple by saying that her relatives met with an accident and asked her to drop at Main road for which he agreed and gave lift to her and when they reached main road he observed no body met with an accident.
He further deposed that again she asked to drop her at Court, accordingly he dropped her infront of court and the lady on that day wear red color saree and later he went to his house. He further deposed that Police came to his tea stall at about 5.00 to 5.30 Pm on that day and asked him to come to police station for which he went to police station, on enquiry police beat him with regard to case. He replied he do not know who she is and On her request only he gave lift to her and dropped her at court. P.W.6 further deposed that on 23.02.2019 police called him to police station and asked to come to
Sub jail for which he reached Sub jail at about 11.30 AM where Judge asked him about his identity particulars and asked him whether he can identify the accused or not for which he answered that he can identify.
Thereupon Approximately there are 6 women shown to him, he identified the accused No.1 among them. The identification of the accused No.1 was done in the open area of sub jail. The accused No.1 standing from the left hand side to 3rd person. The accused No.1 is a short person and he affixed his signature on Test of identification parade proceedings. He identified his signature in Test of identification parade conducted on dt.23.02.2019 at about 11.40 AM. He also identified A1 in the open court.
During the course of Cross examination P.W.6 admitted that he came from Thadipatri and he has no proof to show that he is resident of Proddatur and Police shown the C.C. Camera footage to him 10 prior to conducting Test of identification parade in Sub-Jail premises.
He further admitted in Cross examination the photograph of the accused A1 shown to him by the police prior to Test of Identification parade.
13. PW.7/C.Janaki Principal Junior Civil Judge, Puttoor, in her evidence stated that, previously she worked as II Additional Judicial
Magistrate of I Class, Proddatur from 13.10.2016 to 14.07.2020. She
further stated that on 16.02.2019 the Inspector of police III Town P.S submitted requisition to conduct Test of Identification Parade in
Cr.No.31/2019 with regard to suspect viz., namely Tammisetty Venkata
Subbamma @Chilakala Pyari. She issued summons to B.Sankaramma and P.Chandrasekhar Reddy and fixed the date i.e., on 23.02.2019 and gave the information to Sub-Jail, Proddatur to make necessary arrangements. On 23.02.2019 she went to Sub-Jail by 11.40 AM and seen the witness outside the jail premises. She went into Sub-Jail and conducted the Test of Identification Parade over the suspect by two witnesses as per the procedure contemplated under the law. Witness
No.1/B.Sankaramma and witness No.2/P.Chandra Sekhar Reddy both correctly identified the suspect individually. Both witnesses stated the physical features of suspect and same was mentioned in the proceedings. She recorded the Test of Identification Proceedings and closed the proceedings by 12.40 Pm. Ex.P5/Requisition of Inspector of police, Proddatur III town P.S, Ex.P6/Latter of Superintendent of Sub-Jail,
Proddatur dt.19.02.2019 by II Additional Judicial Magistrate of I Class,
Proddatur. Ex.P7/Test of identification Proceedings dt.23.02.2019 at about 11.40 AM to 12.40 PM.
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During the cross examination P.W.7, the then II Additional
Judicial Magistrate of I Class, Proddatur admitted that on her request
the Jail authorities provided the non suspects from the outside as there is only one female prisoner in the jail and the same was mentioned in her Test of identification proceedings and she did not verify the Adhar cards or identity proofs of non suspects to ascertain their residential particulars.
14. PW.8/J.Jaya Naik C.I. of Police, in his evidence stated that on 07.02.2019 at about 9.30 PM, P.W.1 came to Police station and gave
Ex.P1 report to him. Basing on the Ex.P1 he registered a case in
Cr.No.31/2019 under Section 454, 380 of IPC and submitted FIR/Ex.P8 to all concerned officers. He further deposed that on 08.02.2019 he visited the scene of offence and drawn rough sketch/Ex.P9. He observed CC Cameras which were affixed as Sai baba Temple and He went to command control room and He examined P.W.5 and recorded statement, verified the CC footage shown by P.W.5 and also took the
CC footage and he produced the same before the court i.e,. M.O.5. He identified P.W.6 in the CC footage as P.Chandra Sekhar, he examined him and recorded his statement.
P.W.8 Further deposed that on 12.02.2019 he received credible information about the movements of accused and secured the presence of P.Ws.2 and 4 as mediators and in their presence he conducted vehicle checking at 9.45 AM at Chinnasettypalli and conducted vehicle checking. At that time one male person along with one female person were coming from Kadapa side at about 10.00 AM and on seeing the police they tried to escape some distance, and with the assistance of his staff they caught hold the said persons. During 12 the course of enquiry those persons revealed their identity particulars as A1 and A2 and A1 confessed in the presence of mediators that she used to commit theft against single women and A2 used to assist her in commission of offence. A1 further confessed that she came to proddatur along with A2 and committed theft in the house of P.W.1 and also stated that stolen property was hidden near the Bollavaram
Venkateswara Swamy temple by digging near tree, today they came to take back the stolen property. P.W.8 further deposed that A1 and A2 voluntarily shown the stolen property i.e., MO.1 to MO.4 of this crime and stolen property of other crimes and when He enquired A2, he also confessed the same lines of A1. P.W.8 further deposed that basing on confession made by A1 and A2, He seized MO.6 to MO.8 on 12.02.2019 and arrested A1 and A2 and produced before this court and sent A1 and A2 for Judicial remand. P.W.7 conducted Test of Identification
Parade on 23.02.2019 and witness P.W.1, P.W.6 identified the accused
No.1. after completion of investigation he filed charge sheet.
15. After the closure of the prosecution side evidence, the accused were examined u/Sec.313 Cr.P.C, they termed the evidence of prosecution as false, but not choosen to examine the witnesses on their behalf.
16. Heard the learned Asst. Public Prosecutor and learned counsel for the accused.
Arguments:
The learned defence counsel would submit that except P.W.1 none of the witnesses supported the case of prosecution and even in the evidence of P.W.1 though she identified the accused in open court hall she admitted in her cross examination that she is aged about 73 13 years and suffering from diabetis, B.P. and other ailments and her eye vision is also low so that she cannot identify the persons properly. He further contended that P.Ws.2 and 4 who is alleged to have been acted as mediators for the arrest of A1 and A2 and seizure of M.Os.1 to 4 turned hostile and their evidence should not be considered and when taking into consideration of evidence of P.W.6 who alleged to have been given lift to A1 in his scooty from the place of occurrence and to some other place, admitted that during the course of enquiry police beat him and he do not know A.1 and since the photograph of A1 was shown to him prior to conducting Test of identification parade and thereby he identified A1 in Sub-Jail during the course of test of
Identification parade.
The learned defence counsel further contended that the evidence of P.W.7, the then II Additional Judicial Magistrate of first class has no weight with regard to Test of identificatio parade since the Test of identification parade is not a substantive piece of evidence unless supported by other corroborated evidence of independent witnesses and herein in this case as there is no corroboration of evidence to prove the identification of accused in Sub-Jail Premises, reliance could not be placed on it. He further contended that the investigation
Officer who deposed as P.W.9 here in this case conducted only table investigation and he did not secure any mediators and nothing was happened in the presence of mediators and all the arrest and seizure mediatornams were prepared in the police station and obtained the signatures of Mediators on them and P.Ws.2 and 4 who alleged to have been acted as mediators also did not support the prosecution and thereby reliance should not be placed on their evidence and except the 14 cirucumstantial evidence there are no eye witnesses alleged to have been seen the commission of offence by either A1 or A2 except sole testimony of evidence of P.w.1 who is a old woman aged about 73 years and thereby prosecution miserably failed to prove the guilt of the accused A1 and A2 beyond all reasonable doubt and prays the
Honourable court to acquit the accused.
Per contra, The learned Assistant Public Prosecutor would submit that the evidence available on record namely the witnesses P.Ws.1 to 7 and the property seized from the possession of the accused on their confession covered under Seizure Mediatornama viz., M.Os.1 to 4 belongs to Defacto complainant/P.W.1 coupled with corroborative evidence of other witnesses is suffice to proceed against the accused for the offences charged against them. She further argued that in Test of Identification parade proceedings conducted by P.W.7, the then II
Additional Judicial Magistrate of First Class, Proddatur, P.W.1 identified
both the accused in Jail premises and P.W.1 identified the same accused in open court also. She further contended that neither Ex.P1 report nor 161 Cr.P.C. statements are rebutted by defence counsel by way of cross examination and rough sketch also stands unrebutted.
The Asst. Public prosecutor in support of her arguments she has relied upon the analogy laid down inMuddasani Venkata
Narsaiah(D)through L.Rs and another Vs Muddasani Sarojana
(2016(12)SCC.288)wherein it was held that
“The cross-examination is a matter of substance not of
procedure one is required to put one’s own version in cross-
examination of opponent. The effect of non cross-examination
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is that If no such questions are put the court would presume
that the witness account has been accepted .”
The Learned Assistant Public Prosecutor further argued that evidence of Investigation Officer can not be discarded even it contains small discrepancies and in support of her arguments she has relied upon the analogy laid down in Brij pal Vs. State (Delhi
Administration), ( AIR (1996) SCC 2991)
By relying upon those above two decisions the learned Asst.
Public Prosecutor argued that the evidence of P.Ws.1 to 7 coupled with
Ex.P. clinchingly establishes that A1 committed theft of M.Os.1 to 4 through lurking house tresspass and dishonestly retained the said gold ornaments with the support of A2, as such the said M.Os.1 to 4 are stolen property thus, the prosecution established the guilt of the accused A1 and A2 for the offences under Section 454 and 380 of IPC against A1 and Section 411 of IPC against A2 beyond all reasonable doubt.
This Court has understood the placitum in the precedents cited above and the arguments advanced on behalf of Prosecution to appreciate the case in hand.
17. Now the points that arises for determination are:
1. Whether the prosecution proved that M.O.1 to 4 were stolen by the accused A1 in the house of P.W.1 on the alleged date of incident?
2. Whether the prosecution proved the recovery of
M.Os.1 to 4 from the possession of accused ?
3. Whether the prosecution could bring home the guilt of the accused beyond all reasonable doubt for the 16 offence u/Sec.454, 380 against A1 and an offence under Sec. 411 of IPC against A2 ?
18. To prove the offence u/Sec.454 of IPC, the prosecution has to establish that the accused No.1 herein have committed the lurking house trespass/house breaking in order to commit the offence of theft.
To prove the offence u/Sec.380 of IPC, the prosecution has to establish that the accused herein has committed the theft in any building/vessel used for the custody of the property by moving M.Os.1 to 4 dishonestly from the house of the PW.1 without her consent in order to such taking.
To prove the offence u/Sec.411 of IPC, the prosecution has to establish that the accused herein have dishonestly received or has retained the stolen property i.e. M.Os.1 to 8 knowingly or having the reason to believe the same to be the stolen property. This offence is punishable with imprisonment of either description for a term which may extend to three years or with fine or with both.
Marshaling of facts and analysis of evidence
19. This Court has perused the material available on record, verified the deposition of the witnesses and has given thoughtful consideration to the matter, amidst the arguments advanced.
In this case, the defacto complainant has been examined as
PW.1 and she gave complaint to the III Town Police, Proddatur and basing on her report the investigating Officer herein registered the
F.I.R. , it is appropriate on my part to have a glance on the synaptic outline of contents of F.I.R. in which it was mentioned that “ On 07-02- 2019 at about 3 PM while she was alone present in the kitchen of her house and making preparation of food, some unknown female person so saying that “ ఒక గరతలయన మహళ “ by opening the 17 bolt door entered into the house and committed theft of Viz. (1) 3 layers gold chain (strong Cain) weighing about 60 grams (2) Two Black beads gold bangles weighing about 31 grams, (3) 2 gold rings weighing about 9 grams (4) 1 pair of studs weighing about 2 grams mentioned in the charge sheet worth of Rs.2,52,000/-.
On the contrary to some extent to the contents of F.I.R. when coming to the evidence of P.W.1 who is aged about 73 years and suffering with health ailments like B.P. Sugar and low eye vision as admitted by her during the course of cross examination, deposed that she witnessed A1 while she was sat on the stairs of her house and on enquiry A1 revealed that she came to meet the women staying in the upstairs of her house as the door was locked in the upstairs she was waiting for and later when P.W.1 went in to the kitchen Accused A1 might have entered into the house and committed theft of M.Os.1 to 4 from her Iron Almyrah by opening the keys without her knowledge.
Needless to say that though F.I.R is not a substantive
piece of evidence and it can be used to corroborate or
contradict the maker of F.I.R. But omissions of certain
important facts, affecting the probabilities of the case, are
relevant under Section 11 of the Evidence Act in judging the
veracity of the prosecution case as, held in legal precedent of
Hon’ble Apex court viz , Ravi Kumar Vs. State of Punjab, (AIR
2005 SC 1929). Here in the present case on hand, taking into consideration of corroboration of evidence and veracity of witness/P.W.1, when the contents of F.I.R. given by P.W.1 herein coupled with evidence given by her are quite contra to each other. Therefore, it is very safe to ignore evidence of P.W.1 as her evidence not inspiring 18 the confidence of court. Accordingly the point No.1 is answered against the prosecution.
20. Coming to the Proceedings of Test of Identification parade, as per the version and arguments advanced on behalf of Prosecution,
P.W.1 identified A1 in Sub-jail Premises as well as in Open court while she deposing evidence before court. But astonishingly during the course of Cross examination the defacto complainant/P.W.1 herself admitted that prior to conducting Test of Identification parade, she was shown to a photograph as well as C.C. footage of A1.
Likewise coming to the evidence of P.W.6 who alleged to have given lift to the accused A1 on his scooty from the place of occurrence to court centre, also admitted in his Cross examination that the photograph of the accused A1 shown to him by the police prior to Test of Identification parade.
Therefore in the absence of corroboration of evidence the court is unable to countenance the proceedings of Test of Identification parade since the Test of Identification parade is not a substantial piece of evidence unless corroborated with evidence of other independent witnesses before this court.
At this stage I think it is appropriate on my part to discuss that “ in cases where the witnesses have had ample opportunity to
see the accused before the identification parade is held, it may
adversely affect the trial. It is the duty of the prosecution to
establish before the court that right from the day of arrest, the
accused was kept “baparda” to rule out the possibility of their
face being seen while in police custody. If the witnesses had
the opportunity to see the accused before the TIP, be it in any
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form, i.e., physically, through photographs or via media
(newspapers, television etc…), the evidence of the TIP is not
admissible as a valid piece of evidence.
Thereby it is a matter of great importance both for the
investigating agency and for the accused and a fortiori for the
proper administration of justice that a TIP is to be conducted
without avoidable and unreasonable delay after the arrest of
the accused in a cautious manner. This becomes necessary to
eliminate the possibility of the accused being shown to the
witnesses before the test identification parade.
Here in the present case on hand, the accused were arrested on 12-02-2019 whereas the test of identification parade was conducted on 23-02-2019 and as per the admissions of P.W.1/Defacto complainant as well as P.W.6 in their cross examination a photograph as well as C.C.
footage were shown to them prior to identification of Accused A1 in
Test of identification parade conducted at Jail premises, thereby reliance should not be placed on their evidence with regard to identification of accused in Test of Identification parade.
At this juncture, I would like to place the recent legal precedent of Hon’ble Apex court cited amidst the factual matrix therein to appreciate the case in hand, thus :
Gireesan Nair and others Vs. State of Kerala (2023 (1) SCC 180)
In which the Hon’ble Supreme court held that
“ If identification in the TIP has taken place after the
accused is shown to the witnesses, then not only is the
evidence of TIP inadmissible even an identification in a court
during trial is meaningless”.
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Hence by relying upon the above said legal precedent, the process of Test of Identification parade conducted in this case is not inspiring the confidence of court and thereby it should also requires to be kept aside.
21. When coming to the evidence of P.Ws.2 and 4 who is alleged to have been acted as mediators for arrest of accused A1 and A2 and for seizure of M.Os.1 to 4, they did not support the case of prosecution at all, thereby their evidence is disused.
22. Coming to the evidence of P.W.3 is concerned she is a goldsmith and just weighed the gold ornaments in the presence of police when a lady given them to him in a plastic box and he did not identify either A1 or A2 in open court hall, therefore his evidence can be thrown overboard.
23. When coming to the evidence of P.W.5 is concerned he is a police constable working as C.C. Camera watcher and on the request of
P.W.8 investigating Officer, he gave C.C. camera footage and photos in
C.D. which are marked as Ex.P.4 and M.O.5 respectively, but he did not produce any certificate required under Sec.65 B(4) of Indian Evidence
Act.
In this regard I am fortified in my view that a decision reported in
“Arjun Panditrao Khotkar Vs. Kailash Kushanrao Goratyal
and others (2020(7) SCC 1)” by reaffirming the law laid down in
“Anvar P.V. Vs. P.K. Basheer and others ( (2014) 10 SCC
473)” 21 thatCertification requirement under Sec.65B(4) of the
Indian Evidence act, 1872 is a condition precedent to the
admissibility of Electronic evidence.
By relying upon above said legal precedent it is not obvious to rely upon the evidence of P.W.5 without production of Certificate required under 65B(4) of Indian Evidence, thereby his evidence is outmoded.
24. While so, in order to establish the connectivity of the accused with the crime, the prosecution has tendered the evidence of
P.W.6 who alleged to have been given lift to A1 from the place of occurrence to Court centre, Proddutur on his scooty vehicle bearing
No.AP04 BB 2996 claims in his chief examination that he gave lift to A1 in this case and he also identified A1 in Test of identification parade conducted in Sub-Jail Premises, but admonishingly in his Cross examination he admitted that Prior to conducting Test of Identification police directed him to identify the accused and also shown the photograph of the accused, thereby it is very safe to ignore evidence of
P.W.6 as his evidence not inspiring confidence of court as it is not trustworthy.
25. When coming to the evidence of P.W.8 J.Jayanayak, the then Inspector of Police III Town P.S, Proddutur, though he deposed that he registered the F.I.R and conducted investigation, prepared rough sketch and in the presence of mediators P.W.2 and 4 he arrested A1 and A2 and seized M.Os.1 to 4 from their possession and obtained C.C.
footage from P.W.5 C.C.footage watcher and examined several witnesses in this case and after completion of investigation he filed charge sheet, but the portion of evidence of P.W.8 with regard to 22 recovery of stolen property from the possession of accused is mismatching with the evidence spoken by P.Ws.2 and 4 who did not support to the case of prosecution, thereby it can be assumed that seizure mediatornama was not prepared at the place of arrest.
Accordingly Point No.2 is answered against the Prosecution.
Therefore the story of the prosecution and the evidence of
P.W.8 not believable as not inspiring this Court confidence.
EXCURSUS
26.The case of the prosecution revolved around the slew of circumstances commencing from the disappearance of Gold ornaments i.e., M.Os. 1 to 4 from the house of the defacto complainant/P.W.1 on 07-02-2019 later lodging of complaint by the defacto complainant/P.W.1 on the self same day at about 9-30 PM, suspecting the role of the A1 and A2 that A1 visited the house of P.W.1 on that day and enquired about the woman residing in the upstairs of the house of
P.W.1 and later after committing theft of M.Os.1 to 4 and left the place and obtained the lift of Scooty belongs to L.W.6 and reached to the place of A2 and from there they went away on the two wheeler of A2, and all these circumstances, the prosecution claimed that it has proved the links by chain of events.
The case of the prosecution and its unsuccessful attempts to bring home guilt of the accused, need to be analyzed with the slew of captions as follows:
27. There are no independent eye witnesses to speak about the accused A1 gaining entrance into house of P.W.1 and committed theft of M.O.1 to 4 from her house. In such a situation, the solitary testimony of P.W.1 alone which is quite contra to her earlier report 23 given to the police, which also having several lacuna, is fatal to the case of the prosecution and it should not be believed though the theft is occurred in the house of P.W.1/Defacto complainant, the role of A1 and A2 should be doubted.
Furthermore, several lacunas as to conduction of Test of identification parade by the Magistrate at Jail Premises is discarded by the admissions given by P.W.1 and P.W.6 who admitted in their cross examination that they were shown the photographs of accused prior to conduction of Test of Identification parade. The C.C. footage obtained from the P.W.5 by P.W.8 Investigation Officer is discarded due to Non- certification required under 65B(4) of Indian Evidence Act.
Since the Arrest of accused A1 and A2 and recovery of M.Os.1 to 4 from the possession of A1 and A2 has not been properly established by the prosecution party through Mediators, who did not support the case of prosecution, it can be assumed that there might not be a commission of theft of M.Os.1 to 4 by A1 and A2 from the house of
P.W.1. Accordingly Point No.3 is answered against the case of prosecution.
In order to prove the fact of occurrence the prosecution must adduce clear, cogent and convincing evidence for holding accused A1 responsible for the commission of Lurking house trespass and Theft under Sec.454 and 380 IPC respectively and A2 for the offence under
Sec.411 IPC.
At this juncture, I would like to remember a decision reported in 2013(2) ALD (Crl.) 466 AP rendered in between V.Bala Peddanna
Vs. State of Andhra Pradesh at Paragraph No.7, it was held that:
24
“The document i.e., panchanama cannot be treated as a
substantive piece of evidence, unless the contents mentioned
in the said panchanama are spoken as to by the witnesses to
the said document, it cannot be said to be proved in the
course of trial.”
From the above decision, it is clear that unless the contents of panchanama spoken to as by the punch witnesses, the said panchanama cannot be said to be proved.
Thus, the evidence whatever brought on record by the prosecution is not suffice to vouch the offence against A2 for the offence under Sec.411 of IPC. Accordingly the said charge against A2 is answered in negative.
At this juncture, with regard to evidence of Investigation officer, I would like to quote a decision reported in 1994(2) ALT (Crl) AP,
P.No.69 rendered in between Botcha Raju Vs State represented
by the Inspector of Police, Vijayanagaram Rural circle it was held that :
“The conviction cannot be given basing on the sole
evidence of the police officers without corroboration by
disinterested witnesses”.
On conglomeration of above discourse made under Point Nos.1 to 3, Accused No.1 and 2 can not be termed as possessors of stolen property i.e., M.Os.1 to 4 as there is no connectivity leading to commission of theft of said property by A1 and receiving the same as stolen property by A2, as such this Court is of the considered view that the prosecution has failed to establish the guilt of the accused beyond 25 all reasonable doubt. Hence accused A1 and A2 certainly deserves for acquittal.
28. In the result, this court found that the accused A1 is found not guilty for the offence punishable under Sec.454 and 380 of IPC and
Accused A2 is found not guilty for the offence under Sec.411 of IPC accordingly they are acquitted under Sec.248(1) of Cr.P.C for the said offence. The case property ie., M.O.1 to 4 which were already returned to the defacto-complainant/PW.1 and M.O.8 Scooty which was returned to PW.6 on interim custody shall be made absolute, subject to appeal if any. Likewise the Non-Valuable property if any shall be destroyed after expiry of appeal time.
Typed to my dictation by the Stenographer, corrected and
pronounced by me in open court, this the 8th day of February, 2024.
Sd/- K.Surendra Reddy
I-ADDITIONAL JUDICIAL MAGISTRATE OF FIRST
CLASS, PRODDATUR
APPENDIX OF EVIDENCE
Witnesses examined for prosecution: PW.1: Smt. B.Sankaramma PW.2: Sri V.Sai Prasad PW.3: Sri. Shaik Pathe Mohammed Saleem PW.4: Sri M.Rajasekhar Reddy PW.5: Sri. B.Yanadi Reddy PW.6: Sri. P.Chandra Sekhar Reddy PW.7: Smt. C.Janaki PW.8: Sri. J.Jaya Naik
For Defence:Nil
Exhibits marked for prosecution: Ex.P.1: Report Ex.P.2: Signature in PW.2 Panchanama dt.12.02.2019 at 10.00 am Ex.P.3: Signature of PW.4 in panchanama dt.12.02.2019 at 10.00 am Ex.P.4: Photos containing eleven number Ex.P.5: Requisition of Inspector of Police, Proddatur III Town P.S Ex.P.6: Letter addressed by PW.7 to Superintendent of Sub-Jail, Proddatur Ex.P7: Test of Identification Proceedings dt.23.02.2019 26
Ex.P8: F.I.R. in Cr.No.31/2019 Ex.P.9: Rough sketch Ex.P10: Confession and seizure Panchanama dt.12.02.2019 Ex.P11: Test of identification Pachanama dt.16.02.2019
For Defence:Nil
Material Objects Marked:
MO.1: Three layers gold chain weighing about 60 grams MO.2: Gold one pair of Gold Bangles studed with black beads weighing about 13 grams, MO.3: Two gold rings weighing about 9 grams MO.4: One pair gold studs weighing about 2 grams MO.5: CC footage in C.D MO.6: Intex Company Mobile MO.7: Blue Colour Half shirt MO.8: TVS Star city Motor cycle bearing No.AP04-K-2506
Id/-K.Suredra Reddy,
I A.J.M.F.C.
Proddatur.
// True Copy //
I Addl. Judicial Magistrate
of First Class, Proddatur.
27
CALENDER AND JUDGMENT
Calendar and Judgment tried by the I Addl. Judicial Magistrate of I Class , Proddatur
DATE OF
Offence ReportApprehensionRelease onCommencemeClose of trial Judgment of bailnt of trial 12.02.2019 25.02.2019 07.02.201907.02.2019(A1 & A2)(A1 & A2)20.01.202006.02.202408.02.2024
Calender and Judgment in C.C.No.249/2019on the file of I Addl. Judicial
Magistrate of I Class, Proddatur.
COMPLAINANT: The SHO of Proddatur III town P.S.
Name of the accused with father's Age Religion Residence
Name. 1234 TammisettyVenkataD.No.1/975, Yerramukkapalli, Subbamma @ Chilakala Pyari28HinduKadapaCity,Nowat Indiranagar, Kadapa City. W/o Chan Basha Shaik Khadra Hussain S/o HajiMuslimYerramukkapalli, Kadapa City. 21 Moula
Offence :u/Sec.454, 380 or 411 of IPC
Finding : Accused are found not guilty for the offence punishable u/Sec.454, 380 or 411 of IPC
Sentence: In the result, this court found that the accused A1 is found not guilty for the offence punishable under Sec.454 and 380 of IPC and Accused A2 is found not guilty for the offence under Sec.411 of IPC accordingly they are acquitted under Sec.248(1) of Cr.P.C for the said offence. The case property ie., M.O.1 to 4 which were already returned to the defacto- complainant/PW.1 and M.O.8 Scooty which was returned to PW.6 on interim custody shall be made absolute, subject to appeal if any. Likewise the Non-Valuable property if any shall be destroyed after expiry of appeal time.
Sd/- K.Surendra Reddy
I Addl. Judicial Magistrate of I Class, Proddatur
Copy submitted to the Hon'ble I Addl. District and Sessions Judge, Kadapa. Dis. No. Dt.
// True Copy //
I Addl. Judicial Magistrate
of First Class, Proddatur.
28