IN THE COURT OF JUDGE, FAMILY COURT CUM IX ADDITIONAL DISTRICT AND
SESSIONS JUDGE, EAST GODAVARI AT RAJAMAHENDRAVRAM.
PRESENT: Sri M.Guru Nath, Judge, Family Court cum IX Addl. District and Sessions Court, Rajamahendravaram
Monday, the 9th day of May, 2022.
CRIMINAL APPEAL No.394 of 2017
From what court the appeal is :III Additional Judicial First Class preferredMagistrate Court, Rajamahendravaram.
Number of the case in that Court:C.C.No.138 of 2016
Number of the Appeal:C.A.No.394 of 2017
Name and description of the :1.Udi Ramesh, Appellant S/o Trimurthulu, Hindu, 25 years, R/o D.No.66-16-1/1, Ramadasupeta, Rajamahendravaram. Native of Town Hall Street, Sydulapeta. 2.Kotteda Surya Teja @ Teja, S/o Srinivasarao, Hindu, 24 years, Town Hall Street, Mandapeta. E.G.District. (Accused 1 and 2).
Name and description of the :State, S.H.O., III Town (L&O) P.S., respondents Rajamahendravaram rep.by its Addl. Public Prosecutor, Rajahmundry. East Godavari. (Complainant)
The sentence and order under :In the result, the Accused A1 and A2 are which it was imposed in the lower not found guilty U/Sec.457 and 380 of IPC Court.but found guilty U/Sec.411 IPC and sentenced to undergo simple imprisonment for six months for the offence under Section 411 IPC. The remand period i.e., from 23.01.2016 to 04.02.2016 shall be set off under Section 428 Cr.P.C. M.O.1 to M.O.13 which were already given to the interim custody of PW1 through
Crl.M.P.No.1055/2016, dt.19.04.2016 shall
become absolute after lapse of appeal time. Whetherconfirmed/modifiedor :
REVERSED
Reversed, if modified the modification
Date of presentation:15.09.2017
Date of filing: 15.09.2017 Notice issued by Court to appear:16.09.2017 Bail bonds if appellant has been : --- let out on bail Appellant ordered to appear:31.10.2017 Date of hearing: 02.05.2022 Date of judgment:09.05.2022 2
This criminal appeal coming on 02.05.2022 for final hearing before me in the presence of Sri S.S.Prakasarao, Advocate for Appellants and of Addl. Public Prosecutor for respondent and the and the matter having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1.The unsuccessful appellants herein preferred the present appeal against the Calendar and judgment in C.C.138/2016 dated 23.08.2017 passed by the III Additional Judicial Magistrate of First Class,
Rajamahendravaram finding the appellants to be guilty of the offence under Section 411 Indian Penal Code and consequently sentencing them to undergo simple imprisonment for a period of six months. Having aggrieved by the said sentence, the appellants have invoked provisions under Section 374 Criminal Procedure Code by filing memorandum of grounds of appeal on following grounds:-
2.The judgment passed by the trial Court is against to the criminal jurisprudence, failed to appreciate that the prosecution has miserably failed to prove the offence under Section 411 IPC as glaring discrepancies had noticed from the evidence of prosecution side witnesses. The trial Court has altogether failed to appreciate the evidence of PW1 that he had identified M.Os.1 to 13 after lapse of one month from the date of filing of Ex.P1 report and the said fact is itself sufficient enough to disbelieve the evidence of PW2 and PW6 as placed on record. The trial Court also failed to appreciate the fact that the services of PW2 was utilized in several cases and that PW6 did not utilize the services of neighbouring witnesses at the place of apprehension and the said draw back creates amount of doubt and the said benefit has to be drawn in favour of the appellants. Another plea is placed on record that the testimony of PW7 is altogether silent on the crucial fact of identification of M.Os.1 to 13 by PW1 and the so called independent mediators relied upon by the prosecution as PW4 and PW5 3 altogether turned hostile, however, the trial Court has failed to appreciate the said serious lacunae, but, imposed the sentence against both appellants of the offence under Section 411 IPC with an observation that they had failed to properly account for possession of seized property at the time of their so called arrest effected by PW6 covered under Ex.P2 mediators report. It is further contended that the entire recitals of Ex.P2 mediators report does not contain any description of names of mediators, as such, the prosecution is not entitled to rely upon the said document to seek conviction against both appellants. Finally, it is contended that by taking into consideration of good conduct of both appellants and their antecedents, request to allow this appeal duly setting aside the sentence passed against them by the trial Court in its impugned judgment.
3.Soon after presentation of the appeal before the Hon’ble
District Court, Rajamahendravaram, the same was made over to this
Court for disposal in accordance with Law. Upon receipt of entire material placed on record, notice was ordered against the respondent/ complainant, in response to the same, the learned Addl.Public
Prosecutor has represented the complainant/State. The appeal was taken up for hearing, upon which, the appellants got filed vakalat through their counsel Mr.S.S.Prakasarao and on behalf of the respondent/complainant, the learned Addl. Public Prosecutor has altogether refuted the lengthy argument advanced by his learned counterpart, primarily focusing on three aspects. Initially, the attention of the Court is invited that the testimonies of PW2 and PW6 coupled with
Ex.P2 and the claim made by PW1 of his ownership over M.Os.1 to 13 placed on record are sufficient enough to attract the ingredients of
Section 411 IPC against both accused persons. Nextly, the test identification parade is not substantive evidence and the said draw back 4 is fulfilled as the prosecution succeed to place sufficient corroboration to the testimony of PW1 in proving that M.Os.1 to 13 were stolen during the absence of PW1 and that subsequently, A-1 and A-2 had failed to account for valid possession of M.Os.1 to 13 at the time of their arrest effected by PW6 in the presence of PW2. Lastly he contended that even though PW4 and PW5 independent mediators turned hostile before the trial Court, however, the evidence of PW6 placed on record can be safely relied upon as the recovery of stolen property stands proved from the possession of A-1 and A-2 as per the case of the prosecution and it is for both accused persons to account for valid possession of M.Os.1 to 13 as prescribed under Section 100 of Criminal Procedure Code, but, they have altogether failed to discharge the said plea as no proper explanation was offered by them. Finally, it is contended that the judgment passed by the learned trial Court is proper and having taken into all considerations, imposed the meagre sentence and hence, this appeal does not require any interference and same is liable to be dismissed.
4.Now, the points that arise for determination are:-
1. Whether the sentence imposed upon the appellants by the trial Court in its judgment dated 23.08.2017 in
C.C.138/2016 is liable to be set aside in the form of interference in this appeal?
2. To what result of the appeal?
P O I N T No.1:-
5.For the sake of convenience and for better appreciation of facts, the appellants are referred as A1, A2 and the respondent is referred as complainant as arrayed before the lower court.
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6.The case of the prosecution as unfolded as per the entire material placed on record demonstrates that PW1 along with his family members having locked his house, left Rajamahendravaram Town on 14.01.2016 to Tirumala shrine for pilgrimage. After three days, PW1 and his family members returned to Rajamahendravaram on 17.01.2016, noticed the door locks of his house were broke open. Immediately, PW1 entered into his house, noticed all the articles were found in pell-mell condition and that the window in bed room was bent by unknown offenders and also noticed the doors of two iron store-wells were found open. Upon verification, they noticed theft of black beads chain, gold chain, necklace, one pair of gold matties, one Anji ring, one gold ring, two pairs of gold ear studs, 13 gold rupulu as well as cash of Rs.30,000/- stored in the iron safe. To that effect, PW1 immediately approached III
Town (L&O) P.S., Rajamahendravaram, and lodged a written complaint on 17.01.2016 and the same was registered by PW7 as Cr.No.54/2016 under Sections 457, 380 IPC and immediately he rushed to the scene of offence i.e., house of PW1, secured the presence of mediators PW3 and
LW8/Rokkam Srinivasarao, observed the same, got drafted scene observation report, rough sketch and obtained eight photographs of scene of offence. Thereafter, the statements of PW1 and other listed witnesses were recorded by PW7 as per provisions of Section 161 (1)(3)
Cr.P.C. During the course of investigation, upon receipt of credible information about offenders, PW6 along with his staff members, mediators PW2 and LW10/Koppula Hanuman Prasad, all of them rushed to quarry centre, Korukonda road in Rajamahendravaram Town on 23.01.2016 at about 6.30 A.M., successfully apprehended A-1 and A-2.
Upon causing enquiries, A-1 and A-2 were found to be in possession of stolen property i.e., M.Os.1 to 13 said to be belonging to PW1 in the above crime. As A-1 and A-2 failed to properly account for valid 6 possession of M.Os.1 to 13 knowing it to be stolen property belonging to
PW1, accordingly, PW6 had effected arrest of A-1 and A-2 under cover of mediators report dated 23.01.2016 and completed at 8.45 A.M. duly attested by himself along with mediators and both accused persons.
Thereafter, A-1 and A-2 were brought to the III Town (L&O) P.S.,
Rajamahendravaram and necessary legal formalities of arrest was completed and produced them on the same day before the trial Court seeking judicial remand. The stolen property belonging to PW1 were subjected to test identification parade conducted by PW4 and PW5 on 24.01.2016 at about 10.00 A.M. at Rajaka Seva Sangham premises in
Seshayyametta in Rajamahendravaram Town wherein PW1 has identified the seized stolen property and claimed his ownership over the same, to that effect seizure proceedings was scribed and attested by
PW4 and PW5 respectively. After completion of investigation, PW7 laid charge sheet against both accused persons rendering themselves liable for punishment of alleged offences.
7.Upon careful consideration of entire material placed on record, the learned trial Court has taken cognizance of the offence punishable under Sections 457, 380 or 411 IPC and issued summons against both accused persons. Upon service of the same, both accused persons made their appearance before the trial Court, upon which, they were furnished copies of documents as required under Section 207
Cr.P.C. Thereupon, charges under Sections 457, 380 or 411 IPC were framed, read over and explained to them in Telugu language, for which, they pleaded not guilty for the above said charges and claimed to be tried. During course of trial proceedings, the prosecution examined
P.Ws.1 to 7, supported by marking documents Exs.P1 to P8 and also relying upon M.Os.1 to 13 as seized stolen properties. Upon closure of prosecution side evidence, both accused persons were examined 7
U/Sec.313(1)(b) Cr.P.C. explaining them about incriminating material available from the prosecution side witnesses, upon which, they denied the same. Both accused persons have not chosen to let in any defence evidence nor mark any documents on their behalf. Thereafter, the arguments were advanced by the learned Asst. Public Prosecutor on behalf of the prosecution and the learned defence counsel on behalf of
A-1 and A-2 respectively. After careful consideration of entire oral and documentary evidence relied upon by the prosecution, the learned trial
Judge believed the case of the prosecution and found A-1 and A-2 to be
guilty of possession of stolen property M.Os.1 to 13 and passed the sentence of conviction in imposing imprisonment of six months each to be undergone by both accused persons by pronouncing impugned judgment dated 23.08.2017. Having aggrieved by the said sentence passed by the trial Court, A-1 and A-2 have preferred this appeal with a prayer to set aside the sentence by way of indulgence by this Court in the form of appeal as governed under Sections 374 and 382 Cr.P.C.
8.In order to prove the charge levelled against the accused persons to be guilty of possession of stolen property, the prosecution must succeed in proving two essential ingredients of the offence viz., offence taken place at the house of PW1 and A-1 and A-2 are found in possession of stolen property M.Os.1 to 13, and they had failed to account for its valid possession at the time of their arrest. In order to meet the above said legal requirements, the prosecution relied upon the testimonies of PW1 to PW7. PW1 happened to be defacto complainant, who said to have lodged Ex.P1 report at III Town (L&O) P.S.,
Rajamahendravaram. The testimony of PW1 placed on record demonstrates that on 14.01.2016 he along with his family members left
Rajamahendravaram in connection with pilgrimage to Tirumala and said to have locked his house, and left. PW1 continued that after completion 8 of pilgrimage, they had returned to Rajamahendravaram on 17.01.2016, noticed the door locks were broke open and some unknown persons alleged to have gained entry into his residence during their absence.
While explaining events, PW1 continued that upon entering into his house, they had noticed two iron store-wells were broke open by unknown offenders, on verification noticed theft of gold ornaments and cash said to be stored in iron almyrah. As explained by PW1, they had noticed missing of black bead chain, one gold chain, one necklace, one pair of gold matties, one anji ring, one gold ring, two pairs of ear studs and 13 gold rupulu as well as cash of Rs.30,000/- and thereby, he had immediately approached III Town (L&O) P.S., Rajamahendravaram claimed to have presented Ex.P1 report. According to PW1, the value of theft property was worth about Rs.5 to 6 lakhs. Above said oral contention of PW1 stand corroborated by the testimony of PW7, worked as Station House Officer on 17.01.2016 claiming that PW1 had turned up to the police station at about 4.45 P.M., upon presenting Ex.P1 report, and the same was registered by him as Cr.No.54/2016 under Sections 457, 380 IPC under Ex.P6 and immediately said to have visited the scene of offence i.e., residence of PW1 situated at Ramadaspeta,
Rajamahendravaram along with PW1. PW7 continued that immediately he secured presence of mediators as PW3 and LW8/R.Srinivasarao, in their presence examined the scene of offence, got prepared Ex.P7 rough sketch as well as got scribed scene observation report under Ex.P3 duly attested by them, so also claimed to have obtained 8 photographs of scene of offence marked as Ex.P8. The effort made by the prosecution duly relying upon the evidence of PW3 after placing sufficient corroboration about his presence at the scene of offence is found to be a successful attempt as the testimony of PW3 altogether demonstrates that he was present at the time of preparation of Ex.P3 scene 9 observation report said to be scribed at the residence of PW1 soon after complaining about commission of theft. Admittedly, PW3 happened to be a tenant in the house of PW1 and his evidence placed on record to that effect that he noticed traces of commission of theft in the form of observing grills of the window were bent by removing the mesh seems to be convincing and trustworthy. The learned defence counsel could not succeed in disproving the above said contentions of PW3 in witnessing the events said to be recorded under Ex.P3 scene observation report as claimed by the prosecution.
9.Nextly, the testimony of PW1 in presenting Ex.P1 report alleging commission of theft at his residence during his absence, and a careful reading of entire contents of the said report altogether found to be deviating on vital points. The contents of Ex.P1 report initially point out that while leaving pilgrimage with his daughter and grandchildren, the mother-in-law of PW1 along with his brother's daughter and son of his co-son-in-law said to be present in his residence. However, the testimony of PW1 placed on record points out a contradictory theory pointing out that he had locked his house and went for pilgrimage. The other serious drawback noticed from the recitals of Ex.P1 report points out that PW1 had also reported about missing of four gold bangles as well as reporting the missing of cash of Rs.95,000/- along with other gold articles said to have committed theft as reported under Ex.P1 report. For the reasons best known, the prosecution did not evince any interest to elicit entire details of theft of gold articles as well as quantum of stolen cash while examining PW1 during the course of trial proceedings before the trial Court. On the other hand, PW1 simply complained that a cash of Rs.30,000/- said to be missing along with gold ornaments as deposed by the said witness at the time of trial proceedings. Therefore, it is clear that ocular testimony of PW1 placed 10 on record is found to be contradicting with the recitals of Ex.P1 report and the prosecution has failed to elicit true facts at the time of trial proceedings. For the reasons best known, PW1 has altogether omitted to depose and complain about missing of four gold bangles though specific recitals were mentioned in his Ex.P1 report.
10.The attention of PW7 was also invited by the learned defence counsel in trying to elicit the delay of receipt of Ex.P1 report to the Court. As replied by PW7, contents of Ex.P1 report was said to be drafted by PW1 himself on 17.01.2016 and presented the same before him and he claimed that immediately he has forwarded Ex.P1 complaint along with Ex.P6 printed proforma FIR to the Court without any delay.
However, when the attention of PW7 is invited as to the written endorsement present over Ex.P6 printed proforma FIR, making it clear that the said report was received by the Court on 18.01.2016 at about 12.46 P.M., and the same was acknowledged by PW7. Admittedly, the distance between place of III Town police station and the Court premises would be within 500 sq.yards, however, Ex.P1 report along with Ex.P6 printed proforma FIR was dispatched to the Court on the next day even as per the written endorsement.
11.In order to prove the crucial link in the chain of the evidence that A-1 and A-2 were found guilty of commission of retaining stolen property, the prosecution relied upon the testimonies of PW1, PW2 and
PW6 respectively. Initially, the testimony of PW6 worked as Sub
Inspector of Police, III Town (L&O) police station, Rajamahendravaram, he claimed to have taken up investigation in the above crime on 23.01.2016 upon receipt of credible information, secured the presence of mediators as PW2 and LW10/Hanuman Prasad along with his staff members and mediators as PW2 and LW10/Hanuman Prasad all of them rushed to Korukonda road, quarry centre in Rajamahendravaram Town 11 and noticed presence of A-1 and A-2 moving in suspicion manner near
SBI ATM center. PW6 continued that immediately A-1 and A-2 were surrounded by them, after separating both accused persons in the presence of mediators, his enquiries with A-1 and A-2 had resulted in recovery of gold ornaments i.e., M.Os.1 to 13 respectively. In specific terms, PW6 maintained that black beads two rows gold chain, one normal ring and another ring studded with red stone, one pair of ear studs, one pair of ear hangings, two pair of matties, 13 gold rupulu, small locket and cash of Rs.15,000/- were seized from the possession of
A-1 and similarly, gold necklace and cash of Rs.15,000/- were seized from the possession of A-2 and thereby apprehended both A-1 and A-2 and forwarded them to judicial remand. The entire testimony of PW6 is altogether silent as to the seizure of M.Os.1 to 13 under the cover of mediators report as claimed, as no piece of evidence was elicited by the prosecution to get marked the said document while examining the said witness. Further, the prosecution has failed to fill up the said lacunae in the form of relying upon the testimony of PW2 as mediator, who alleged to have working as Village Revenue Officer on the date of alleged incident. The testimony of PW2 placed on record demonstrates that on 23.01.2016 at about 5.00 A.M. upon receipt of a phone call, he had been to III Town P.S., Rajamahendravaram, and from there, he said to have accompanied S.I. of Police along with his staff and LW10/Hanuman
Prasad to quarry center, near SBI ATM and noticed presence of A-1 and
A-2 said to be arrested by police officials. According to PW2, initially, A- 1 was questioned by police officials, in turn A-1 claimed to have confessed that on 14.01.2016 midnight hours, he along with A-2 said to have entered into the house of PW1, opened shelf with keys and alleged to have confessed about commission of gold articles and money i.e.,
M.Os.1 to 13 said to be kept in plastic cover. PW2 continued his version 12 that A-1 further confessed that as PW1 is related as uncle to A-1, said to have slept in the same house on the said night and on the next day stealthily took away M.Os.1 to 13 and placed the same in the burrow of coconut tree and with the help of A-2 removed stolen gold articles and cash i.e., M.Os.1 to 13 from the above said place. In categorical terms,
PW2 stated that A-1 was guilty of producing M.Os.1 to 11 as well as cash of Rs.15,000/- from his pocket. Similarly, PW2 continued his testimony that A-2 also confessed his participation along with A-1 in commission of theft and saying so, said to have produced gold necklace and cash of
Rs.15,000/- which were said to be seized by the police officials in his presence under cover of Ex.P2 mediators report. According to PW2, identity slips were said to affixed on M.Os.1 to 13 while preparing Ex.P2 mediators report. The above said contentions of PW2 were subjected to the test of cross examination by the learned defence counsel with an attempt to disprove the same. As replied by PW2, his services were utilized in several matters by police officials, and he claimed to have visited III Town (L&O) P.S., Rajamahendravaram at about 6.00 A.M. on 23.01.2016. No doubt, PW2 clearly acknowledged that quarry centre is busy area consists of shops and residences. On the crucial aspect of filling up details of mediators report, interestingly, PW2 maintained that entire recitals of Ex.P2 were scribed by police constable by name
Sathibabu. When the attention of PW2 invited for scribing contents of
Ex.P2, he claimed that due to injury to hand, he was not in a position to draft contents of Ex.P2 mediators report. Admittedly, the services of
PW2 said to be utilized by III Town (L&O) P.S., Rajamahendravaram as the place of apprehension appears to be falling upon territorial jurisdiction of PW2 as he worked as VRO at the relevant point of time.
Even otherwise, sufficient evidence is placed on record that it is not the case of the prosecution that the services of PW2 was never utilized by 13 the police officials and that he is not an independent witness. During the course of arguments, the learned counsel for the appellants vehemently argued that serious drawbacks were committed by the prosecution by violating provisions of Section 100 Cr.P.C. as well as Rule 35 of Criminal
Rules of Practice and non compliance of the stipulated procedure, the sentence of conviction imposed upon both the accused persons is liable to be set aside. The attention of the Court is invited to appreciate the contents of Ex.P2 mediators report as it is the solitary document to disbelieve the entire case of the prosecution. A careful reading of entire recitals of Ex.P2 mediators report, which contains recitals to be scribed in five pages does not contain the full descriptive particulars of mediators as PW3 as well as LW10/Hanuman Prasad at Page No.1. The so called admissible portion of confession statement said to be deposed by A-1 was scribed commencing from Page Nos.1 to 3 altogether point out that A-1 and A-2 said to have committed cash after taking out of a sum of Rs.6,000/-. Quite interestingly, the remaining description of the cash was not written in Page No.3, however it was kept blank at Page
No.3. Even as per the recitals of Ex.P2 mediators report, altogether point out that A-1 and A-2 said to have slept in the house of PW1 on the night of 14.01.2016. However, PW1 altogether introduced a new theory claiming that he had locked his house and went for pilgrimage. Above said ambiguity was not tried to be cleared by the prosecution at the time of trial proceedings while inviting the attention of PW1 as well as
PW7 respectively. The last page of Ex.P2 mediators report contains details of M.Sathibabu, P.C.No.2298 as scribe along with the so called signatures of A-1 and A-2 and PW6. At this juncture, the testimony of
PW6 placed on record is altogether silent without making any reference as to the strict compliance of provisions of Section 100(6) Cr.P.C. at the time of effecting arrest of A-1 and A-2 and seizure of MO1 to MO13. A 14 plain reading of sub section 6 of Section 100 Cr.P.C. mandates that at the time of arrest and seizure of incriminating material, the police officer is duty bound to prepare a list of articles said to be seized from the possession of the accused persons and he is expected to handover a copy of the same under written acknowledgment and to handover a copy to the accused persons under written acknowledgment. No such averment does find place in Ex.P2 mediators report as well as entire testimony of PW6 is altogether silent on the said mandatory requirement to be followed by PW6. Non compliance of the provisions of sub section 6 of Section 100 Cr.P.C. had altogether created a serious drawback to appreciate the ocular testimonies of PW1 and PW6 coupled with Ex.P2 mediators report, so as to arrive at a finding that M.Os.1 to 13 were seized from the possession of A-1 and A-2 as portrayed by the prosecution theory.
12.The prosecution also relied upon the testimonies of PW4 and
PW5 to prove its contentions that M.Os.1 to 13 were identified by PW1 in a test identification parade said to be organized at Rajaka Seva
Sangham premises, Seshayyametta in Rajamahendravaram Town on 24.01.2016 at about 10.00 A.M. Quite interestingly, the said effort made by the prosecution found to be a counter productive as the so called independent mediators examined as PW4 and PW5 altogether turned hostile, but, simply identified their signatures marked as Ex.P4 and
Ex.P5, but, altogether disputed their roles in organizing test identification parade of M.Os.1 to 13 as claimed by the prosecution. The effort made by the learned Asst. Public Prosecutor subjecting the above said witnesses to the test of cross examination also not yielded any positive result. A plain reading of recitals of test identification parade proceedings dated 24.01.2016 altogether point out that seized gold ornaments marked as M.Os.1 to 13 were said to be placed on a table 15 and that PW1 was asked to identify the same, and upon prompt identification of M.Os.1 to 13 by PW1, has resulted to prepare the said document as Ex.P5 at about 11.00 A.M. on 24.01.2016, which contained the signatures of PW4 and PW5 along with PW1. The effort made by the prosecution in relying upon the testimony of PW1 on the above said fact is also found to be a contradictory theory as PW1 had altogether introduced a new fact claiming that M.Os.1 to 13 were said to be identified by him at the police station after one month from the date of lodging Ex.P1 report. Even otherwise, PW1 clearly acknowledged that he had no information from police officials about details from whom M.Os.1 to 13 were recovered. At this juncture, the relevant provision of Rule 35 of Criminal Rules of Practice makes a reference to the facts placed on record. A plain reading of Rule 35 of Criminal Rules of Practice deals with the procedure of identification of stolen property making it mandatory that test identification parade of seized property shall be held in the
Court of the Magistrate and each item of property shall be put up separately in the parade and it shall be mixed with four or five similar objects. It is also legal obligation that before calling upon the witnesses to identify the property, he shall be asked to disclose identification marks of his property and soon after identification, the witness shall not be allowed to communicate with the other witness, who is in inviting in such identification.
13.Adverting to facts placed on record, the entire testimony of
PW6 is altogether silent as to the legal requirements and compliance of
Rule 35 of Criminal Rules of Practice soon after recovery of M.Os.1 to 13 from the possession of A-1 and A-2 under cover of Ex.P2 proceedings. A clear failure on the part of the prosecution for non compliance of Rule 35 of Criminal Rules of Practice as well as provisions of sub section 6 of
Section 100 Cr.P.C. by PW6 and PW7 being investigating officers relied 16 upon by the prosecution would altogether lead to a finding that the prosecution had altogether failed to bring home the guilt of the offence charged against A-1 and A-2 to be liable for possession of M.Os.1 to 13 as stolen property belonging to PW1 as claimed by the prosecution.
Therefore, this Court at appellate stage, having vested powers under
Sections 397 and 399 Criminal Procedure Code arrives at a finding that the impugned judgment passed by the trial Court needs interference as glaring serious drawbacks have been noticed from the evidence of prosecution witnesses as placed on record.
14.In view of detailed foregoing discussion coupled with the serious drawbacks committed by the prosecution at the time of trial proceedings before the trial Court as discussed at length in preceding paragraphs of this judgment would altogether lead this Court to arrive at a finding that the judgment and sentence passed by the trial Court is not legally sustainable and the same is liable to be set aside. Hence, the point No.1 is answered in favour of appellants.
P O I N T No.2:-
15.In the result, the appeal is allowed as per provisions of
Sections 397 and 399 Criminal Procedure Code by ordering to set aside the judgment and sentence passed by the learned III Additional Judicial
Magistrate of First Class, Rajamahendravaram in C.C.138/2016 dated
23.08.2017 against A1 and A2 of the charged offence under Section 411 Indian Penal Code and they are acquitted as per provisions of
Section 248(1) Cr.P.C. of the said offence. The bail bonds of A1 and A2 executed shall be in force for a period of six months as per provisions of
Section 437-A of Cr.P.C. The order passed by the learned trial Court in ordering interim custody of M.Os.1 to 13 in favour of PW1 shall be mace absolute upon expiry of appeal time.
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Dictated to the Stenographer Grade-II, transcribed by him, corrected
and pronounced by me in open Court, this the 9 th day of May, 2022.
Sd/-M.Guru Nath,
JUDGE,
Family court cum IX Additional District and Sessions Court, Rajamahendravaram.
APPENDIX OF EVIDENCE
No oral or documentary evidence is adduced on either side,
Sd/-M.Guru Nath,
JUDGE,
Family court cum IX Additional District and Sessions Court, Rajamahendravaram.
Copy to theIII Additional Judicial Magistrate of First Class, Rajamahendravaram. Copy to the appellants through their counsel.