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IN THE COURT OF THE PRL. ASST. SESSIONS JUDGE,
R.R.DISTRICT AT L.B.NAGAR :: HYDERABAD.
PRESENT : Mr. M.V.RAMESH, B.COM., LLM.,PGDVS.,
PRL. ASST. SESSIONS JUDGE.
Dated this Thursday the 19 th day of April, 2012.
S.C.No. 543 of 2010
Name of the Complainant:The State of Andhra Pradesh rep. by the S.I. of Police, P.S., Pet Basheerabad.
Name of the Accused : 1) Andhrasi Srinu @ Khaseem, S/o. Anthaiah, Age: 25 yrs., Occ: Scrap Business, R/o. Indiranagar Colony, Shapur Nagar Jeedimetla, N/o. Medak District.
2) Syed Zakeer, S/o. Late Syed Babu Miya, Age: 26 yrs., Occ: Priviously Scrap Business, Present Occ: Fruit Vendor, R/o. Indiranagar Colony, Rodamistry Nagar, Shapur Nagar, Jeedimetla, Quthbullapur, R.R.District, Present: Vaddapally (v), Doulathabad(M) Medak District.
3) Mohd. Shafee, S/o. Md. Yakub, Age: 22 yrs., Occ: Business, R/o. H.No.83/11 F, Venkatagiri, Yousufguda, Hyderabad. (4) Md. Ashraraf, (5) Md. Syed. Case against A4 and A5 separated and numbered as PRC 25/10 as NBWs are pending against them.
Charge Under Sec. : U/s. 395 of the IPC
Plea of the accused : Not guilty
Finding of the Court : Found not guilty
Sentence of Order : A1 to A3 are found not guilty for the offence punishable U/s. 395 of the IPC and acquitted under Sec.235(1)Cr.P.C.
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Prosecution conducted by:Sri Md. Barkat Ali Khan, Addl. PP for complainant.
Accused defended by:Sri K. Rajeev Reddy, Counsel for the accused.
Case Committed by:XV Metropolitan Magistrate, Cyberabad, at Medchal.
This Sessions Case is coming before me for final hearing on this day in the presence of Sri Md. Barkat Ali Khan, Addl. Public Prosecutor for the complainant and Sri K. Rajeev Reddy, Counsel for the accused and upon perusal of material papers on record and the matter having been stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
Case of the prosecution:
1)The SubInspector of Police, Pet Basheerabad Police Station,
Cyberabad, laid charge sheet against the accused alleging that A1 and A2 have hatched a plan to commit dacoity for monetary gain and disclosed the matter to their friends A3 to A5 and with their help on 20.3.2009 at about 8
PM., A3 to A5 came on their Karizma Motorcycle on NH7 service road near
Om books, Jeedimeta village, dashed to the PW1's Bajaj Pursar Motorcycle on which PWs 1 and 2 were proceeding from their office i.e. M/s. Jayabheri
Filling Station, Jeedimetla, to hand over a cash bag to their owner at
Ramaraju Nagar, Suchitra Cross Roads to divert their mind to rob their cash.
A5 got down on the motorcycle, went to near Om books, Jeedimetla village where A1 and A2 were waiting and informed the same matter to them.
Immediately they rushed to the scene of offence where A3 and A4 diverting the minds of PWs 1 and 2 throw chilly powder in the eyes of PWs 1 and 2 3 and robbed the cash bag from pillion riderPW2 and A1, A2 and A5 fled away from the scene of offence. Due to having long hair to A3 he appeared to
PWs 1 and 2 as lady offender. Later A3 and A4 also fled away from the scene of offence. A1 to A5 met at the house of A1 at Rodamistrinagar, counted the robbed cash and the total amount was Rs.2,48,000/ which was equally distributed and shared the amount and spent the amount except Rs.2,000/.
On the arrest of the accused personsA1 to A3 produced MOs 1 to 3cash of
Rs.2,000/ and that thereby the accused Nos. 1 to 3 along with A4 and A5 are liable for the offence punishable U/s.395 of the IPC.
Furnishing Copies:
2)The learned XV Metropolitan Magistrate, Cyderabad, at
Medchal after taking cognizance U/s.190 Cr.P.C., and on appearance of the accused 1 to 3 furnished copies of case documents and complied with the provisions of Sec.207 Cr.P.C. Upon committal by the learned Magistrate, the
Court of Sessions U/s.193 Cr.P.C. taken cognizance of the offence against the
A1 to A3.
Examination of the accused and framing of the charge:
3) After appearance of the A1 to A3, heard the learned Addl. Public
Prosecutor and the defence Counsel and a charge U/s. 395 of the IPC has been framed, read over and explained to the accused in Telugu language.
The A1 to A3 have pleaded not guilty and claimed to be tried. To prove the above charge, the prosecution in total examined Pws 1 to 10 and got marked Exs.P1 to P8 and MOs 1 to 3 in support of the case.
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Examination of the accused U/s.313 (1)(b) Cr.P.C.
4)After closure of the prosecution's evidence the A1 to A3 were examined U/s.313 Cr.P.C., explaining the incriminating circumstances that are appearing in the evidence against them. The accused have pleaded not guilty and denied the circumstances. The accused reported no defence witnesses on their behalf.
Now the point for determination is
5) Whether the prosecution could bring home the
guilt of the A1 to A3 for the offence punishable
U/s.395 of the IPC beyond all reasonable doubts?
Point:
6)PW1, who is no other than the defacto complainant, deposed that he is working as Manager in M/s. Jayabheri Filling Station, Jeedimetla, and that he knows PWs 2 and 8 who are no other than the Superintendent and owner of the said filling station. On 20.3.2009 at about 8 PM night himself and PW2 proceeding to the house of his ownerJaya PrabhuPW8 on a Pulsar Motorcycle and they were proceeding on service road adjacent to
NH No.7 with daily collection an amount of Rs.2.48 lakhs kept in a cash bag.
When they reached near Om Books building at Jeedimetla village two unknown persons came on CBZmotorcycle in the opposite direction and dashed to their motorcycle and then the said offenders abused them.
Meanwhile, an another two wheeler came in the opposite direction wherein two persons were sitting and the said offenders sprinkled mirchi powder in their eyes and snatched the cash bag containing Rs.2.48 lakhs from the 5 possession of PW2 and sped away from the scene of offence along with other bike which they dashed them initially and thereby he gave a report to the
Police. Police examined him and recorded his statement. He could not observe the offenders and motorcycle numbers due to chilli powder but they were in the age group between 28 and 30 years and that he do not know A1 to A3.
Defence of the accused:
7)The plea of the A1 to A3 is one of the total denial and that a false case was foisted against the them for statistical purpose by cooking up the MOs 1 to 3 for the purpose of this case and that the accused have not committed any offence. None of the witnesses have given descriptive particulars of the dacoits who committed the offence and that the prosecution evidence is not establishing that the accused before the Court are the culprits in the case of the dacoity and therefore, the accused pray the
Court to acquit them. Nonproduction of sales register of Jayabheri Filling
Station, hostile evidence of mediators for the arrest of the accused, non examination of independent witnesses, inconsistencies and contradictions in the evidence of prosecution witnesses are all fatal to the case of the prosecution and the accused are to be acquitted.
8)Before dealing with the rival contentions of both the parties let us have a quick look to the contents of Ex.P1 through which the criminal law was set into motion by PW1. From a keen perusal and reading of the contents of the Ex.P1 it reveals that prima facie, interalia, that on the first motor cycle one male offender and one female offender came and dashed 6 them and thereafter on another motorcycle two more offenders came to the scene and sprinkled the chilli powder and snatched the cash bag containing
Rs.2.48 lakhs and that PWs 1 and 2 can identify the offenders if shown to them. Thus except age group of the offenders ranging between 28 and 30 there are no other descriptive particulars or stature of the offenders including that they are fat, thin, complexion etc. Thus Ex.P1 contents have to be corroborated by independent evidence with reference to the descriptive particulars of the offenders who committed the crime. Unfortunately, PW1 deposed in the chief examination that he cannot identify the said offenders now and that he do not know A1 to A3 who are present in the Court. Even though he participated in the TIP proceedings, he could not state any descriptive particulars of the offenders nor made an attempt to identify them.
Therefore, the oral testimony of PW1 although useful to the limited extent of committing the offence of dacoity against them, but it is not helpful to the case of the prosecution either to establish the identity particulars of the offenders or that A1 to A3 among the five offenders who committed the dacoity.
9)PW2 another eye witness and who is working as Superintendent in the same filling station along with PW1 deposed corroborating the evidence of PW1 as regards to the occurrence and stated in categorical terms in the chief examination itself that he cannot identify the offenders due to darkness and sprinkling of chilly powder. He do not know A1 to A3 who are standing in the Court. Therefore, equally the evidence of PW2 is also not helpful to the case of the prosecution to establish the essential ingredients of the sole charge levelled against the the accused.
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10)PW8, who is no other than the owner of Jayabheri Filling
Station, Jeedimetla, deposed that about three years ago about 8 PM PWs 1 and 2 informed him over the phone about the dacoity and so he rushed to the spot and noticed that about Rs.2.48 lakhs cash bag was snatched by the offenders who sprinkled chilly powder against PWs 1 and 2 and sped away on their motor cycles. So, he came to know about the incident through PWs 1 and 2 and ultimately PW1 gave a report to the Police. Thus, the evidence of PW8 is hearsay evidence and of course nothing was elicited during the cross examination of PW8 to discredit his testimony. From the cross examination of PW8 it was elicited that the daily sales will be Rs.7 lakhs and maintain a register for sales and he has given the cash book to prove the sale and the same is being not exhibited by the prosecution. Therefore, it is fatal to the case of the prosecution. PW8 also deposed that regularly the collection amounts till evening are being deposited in the bank and after evening the collections till night would be brought to the house of PW8 by
PWs 1 and 2 and in that way PWs 1 and 2 are proceeding to the house of
PW8 on that day for handing over the cash of Rs.2.48 lakhs. Thus, the evidence of PWs 2 and 8 is only helpful to the limited extent about the occurrence of the incident wherein PWs 2 and 8 have lost Rs.2.48 lakhs in a dacoity and for PWs 1, 2 and 8 there is no need or necessity to foist a false case either to oblige the Police or on any other ground and therefore the evidence of PWs 1, 2 and 8 is natural, reliable and trust worthy in nature but only helpful to the limited extent of the occurrence of the incident indicated above.
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11)PW3, one of the mediators for the scene of offence panchanama and the rough sketch, deposed that on 21.3.2009 in the morning at 8 AM., the Pet Basheerabad Police called him and one Narsimha to the scene of offence i.e., near Om Book Shop, Jeedimetla village, Police observed the scene and they have also noticed sprinkling of chilly powder traces at the scene of offence and accordingly, Police got prepared the scene of offence panchanamaEx.P2 along with rough sketch and he attested it along with
Narsimha. Virtually nothing was elicited from the cross examination of PW3 either to discredit his testimony or Ex.P2 or merely because the sprinkled chilli powder traces which is not fit for collection is not seized perhaps it cannot be separable that alone is not a ground to discredit the evidence of
PW3 and Ex.P2.
12)PWs 4 and 5, who are the mediators for the arrest of the accused and seizure of MOs 1 to 3, have turned hostile to the case in toto. PW4 deposed that he never acted as mediator for the arrest of the accused and seizure of case property, about more than one year ago he had been to Pet
Basheerabad Police Station to give report to the Police in connection with the theft of a bicycle but the Police have obtained his signatures on a white paper and that he do not know the contents of confessionalseizure panchanama, dt.4.7.2010. So also PW5 deposed that his signatures were obtained on a white paper by the Police. Therefore the hostile evidence of PWs 4 and 5 is also not only seriously fatal to the case of the prosecution but also disproves the very detention of A1 to A3 by PW6 and extracting the confession from A1 to A3 by PW9 and the seizure of MOs 1 to 3 being cash of Rs.800/, Rs.700/ and Rs.500/ said to have been produced by A1 to A3 respectively and 9 ultimately the said hostile evidence is touching the root of the case.
13)PWs 6, 7, 9 and 10 are the Investigating Officers. PW7 deposed that on 20.3.2009 at 9 PM he received Ex.P1 from PW1 and he registered it as a case in Cr.No.79/2009 under Sec.392 IPC and issued FIRsEx.P3 and he took up the investigation, examined PWs 1 to 3 and recorded their statements. He visited the scene of offence, called PW3, P. Narsimha Rao
LW5, observed the scene and got prepared the scene observation panchanama, rough sketch and he has given information to all the Station
House Officers about the occurrence. Thereafter PW9 took up further investigation.
14)PW9 deposed that on 4.7.2010 PW6 and other PCs who were on patrolling duty on 4.7.2010 at 6 PM noticed A1 to A3 at Suchitra Junction under suspicious circumstances and they produced A1 to A3 before PW8 and he called PWs 4 and 5 and in their presence interrogated them and A1 to A3 have confessed about the offence committed along with the A4 and A5 who are absconding and A1 to A3 produced MOs 1 to 3 respectively and the same was seized under Exs.P4 to P6 and the accused also confessed that they have spent away the rest of the amount for their luxuries and needs. So he sent
A1 to A3 to the court for remand and converted the Section of Law from
Sec.392 to Sec.395 IPC in view of the confession made by the accused.
15)PW10 took up further investigation from PW9 and gave requisition to the X Metropolitan Magistrate, Malkajgiri, Cyberabad to conduct test identification parade of the suspects and the learned X
Metropolitan Magistrate inquired with PW1 and recorded the questionnaire 10 on 24.7.2010 and since PW1 has stated that he cannot identify the offenders, the learned Magistrate has not continued the TIP proceedings and to that extent he issued proceedings, dt.24.7.2010. After completion of investigation
PW10 laid charge sheet in this case against A1 to A3 as A4 and A5 were found absconding.
16)In this case from the cross examination of PWs 6, 7, 9 and 10 some more beneficial points have been elicited which are further supporting the defence urged by the accused. PW8 has not explained what are the suspicious circumstances under which himself and his party detained A1 to
A3. Even he has not given the duty chart to the Investigating Officer. Even
PW9 has not recorded his statement. PW7 deposed that he has not seized any record from the Jayabheri Filling Station and even he has not examined the owner of the Om Books Building and therefore, it is fatal to the case of the prosecution, especially in the teeth of the evidence of PW8 that he has given the Sales Register to the Police for verification of the daily sales on the date of offence. Even PW7 deposed in the cross examination that PWs 1 and 2 have not given any descriptive particulars of the offenders except the age.
He also admitted that N.H.7 Road is a busy road.
17)From the cross examination of PW10 it was also elicited that a common panch slip was affixed on the MOs 1 to 3 which is against to the contents of Exs.P4 to P6. Thus, the investigation conducted by PWs 7, 9 and 10 is of no help to the case of the prosecution either to establish the identity particulars of the offenders or to infer that A1 to A3 along with A4 and A5 committed dacoity in this case. Except the confession said to have been 11 made by A1 to A3 before PW9 which is hit by Secs.24 and 25 of the Evidence
Act, there is no other legal, definite and substantive piece of evidence so as to invite A1 to A3 into the folds of charge under Sec.395 IPC. Even the prosecution failed to establish any previous criminal history or convictions recorded against the accused although some crime numbers said to have been registered and mentioned in the charge sheet pending against A1 and
A2.
18)The learned Counsel for the accused relied on the following decision reported in ..
Jarapala Deepala @ Babu Rao Vs. State of A.P2006 (1) ALT (Crl.)54 (AP)
and contended that where the prosecution evidence is not disclosing or establishing that the accused charged by the Police are the culprits conviction under Sec.395 IPC is not sustainable and A1 to A3 are to be acquitted.
19)The learned Counsel for the accused also relied on the following two decisions reported in ..
1) Habal Shaikh Vs. State 1991 CRL. L. J. 1258
2) Wakil Singh Vs. State of Bihar – AIR 1981 Supreme Court 1392 and contended that where none of the prosecution witnesses have furnished the descriptive particulars of the offenders at any stage of the proceedings nor gave evidence furnishing the identification marks such as stature of the accused or whether they were fat or thin or of fair colour or black colour etc., conviction under Sec.395 IPC is not maintainable and the accused are to be acquitted. Following the principles laid down in the said three decisions, in 12 the case on hand also PWs 1, 2 and 8 have failed to furnish any kind of descriptive particulars of the offenders and identification marks at any stage of the proceedings and further they failed to identify A1 to A3 as offenders out of A1 to A5 committed dacoity against them and robbed cash and therefore as rightly urged no conviction can be recorded against A1 to A3 under Sec.395 IPC and accordingly the point is answered in favour of the accused and as against the prosecution.
Result:
20)In the result, the A1 to A3 are found not guilty for the offence punishable U/s.395 of the IPC and the A1 to A3 are acquitted under
Sec.235(1) of Cr.P.C. The bail bonds of the accused are subject to the provisions of Sec.437A Cr.P.C. A1 and A2 who are in judicial custody shall be set at liberty, if they are no longer required in any other case. MOs 1 to 3 cash of Rs.2,000/ shall be returned to PW8, after appeal time is over.
Dictated to the Personal Assistant, transcribed by her, corrected
and pronounced by me in the open Court on this the 19th day of April, 2012.
PRL. ASST.SESSIONS JUDGE,
RANGAREDDY DISTRICT.
APPENDIX OF EVIDENCE
WITNESS EXAMINED FOR
PROSECUTION
PW1: Bonagala Mahipal – Complainant and victim, 13
PW2: Venkat Raju Patel – Another victim, PW3: P. Krishna Murthy – Panch witness for scene of offence panchanama, PW4: T. Narasimha – Panch witness for confessionalseizurepanchanama, PW5: C. Shankar Goud – Panch witness for confessional panchanama, PW6: P. Anantha Ramulu – Police Constable, PW7: P. Srinivas Reddy Inspector of Police (I.O.) PW8: P. Jaya Prabhu – Owner of Jayabhri Filling Station,Jeedimetla, PW9: V. Yadagiri Reddy Inspector of Police (I.O.), PW10: S. Ashok Kumar Inspector of Police (I.O.).
DEFENCE
Nil
DOCUMENTS MARKED FOR
PROSECUTION
Ex.P1: Report given by PW1 dt.20.3.2009, Ex.P2: Scene of offence panchanama dt.21.3.2009, Ex.P3: FIR, Exs.P4 to P6: Confessional statements of A1 to A3, dt.4.7.2010(relevant portions), Ex.P7: Alteration of section of law proceedings dt.4.7.2010, Ex.P8: TIP Proceedings of the Magistrate dt.24.7.2010.
DEFENCE
Nil
MATERIAL OBJECTS
MO1: Cash of Rs.800/ seized from A1, MO2: Cash of Rs.700/ seized from A2, MO3: Cash of Rs.500/ seized from A3.
PRL. ASST.SESSIONS JUDGE,
RANGAREDDY DISTRICT.
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IN THE COURT OF THE PRL. ASST. SESSIONS JUDGE,
R.R.DISTRICT AT L.B.NAGAR :: HYDERABAD.
S.C.No. 543 of 2010
CALENDER
1)Name of the Complainant: The State of Andhra Pradesh rep. by the S.I. of Police, P.S.,Pet Basheerabad.
2)Name of the Accused : 1) Andhrasi Srinu @ Khaseem,
2) Syed Zakeer,
3) Md. Shafee.
3)Charge Under Secs. : U/s. 395 of the IPC
4)Crime No. & PRC No. : 79/2009 & 165/2010
5)Date of occurrence:20.3.2009
6)Date of complaint:20.3.2009
7)Commencement of trial:28.3.2012
8)Closure of Trial:3.4.2012
9)Date of Judgment:19.4.2012
10)Finding of the Court: Found not guilty.
11) Sentence of Order :Accused 1 to 3 found not guilty of the offence U/s. 395 of the IPC and they are acquitted U/s.235(1) Cr.P.C.
PRL. ASST.SESSIONS JUDGE,
RANGAREDDY DISTRICT
Copy to :
1)The Commissioner of Police,
2)The Addl. P.P. of this Court,
3)The Director of Prosecution.
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