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IN THE COURT OF IX ADDL. ASSISTANT SESSIONS JUDGE
L.B.NAGAR, R.R.DISTRICT.
PRESENT:- SMT. P. VIJAYA DURGA, IX Addl. Asst. Sessions Judge L.B.Nagar, R.R.District.
Dated this the 21st day of December, 2018.
SESSIONS CASE No.948/2017.
Name of the Complainant PS Miyapur.
Name of the A1. Jarpat Yadaiah @ Chinna Yadaiah, Accused S/o. Pedda Ramulu, Age: 22 yrs, Occ: Stone cutter, R/o. H.No. 7-188, Shanthinagar, Chandanagar, Hyderabad.
A2. Muddangula Chinna @ Oleti Chinna, S/o. Narayana, Age: 23 yrs, Occ: Labour, R/o. Kistareddypet, Ameenpur Mandal, Sanga Reddy District, N/o. Sriramnagar colony, Prakasham District.
A3. Jarpet Pandu @ Bandari Pandu, S/o. Raju @ Ravi, Age: 20 yrs, Occ: Auto driver, R/o. H.No. 7-188, Shanthinagar, Chandanagar, Hyderabad.
A4. Mangali Naresh, S/o. M. Satyanarayana, age: 21 yrs, Occ: Barbar shop at Kistareddypet R/o. H.No. 1-81, Kistareddypet village, Ameenpur Mandal, Sanga Reddy District.
A5. Jarpat Yadagiri @ Yadi @ Pedda Yadaiah, S/o. Chinna Ramulu, age: 30 yrs, Occ: Auto driver, R/o. H.No. 7-157, Shanthinagar, Chandanagar, Hyderabad. Charge U/Sec. 395 of IPC
Crime No. 556/2017
Plea of the Accused Not guilty.
Finding of the CourtIn the result, the accused No. 1 to 5 are found not guilty for the offence U/sec.395 of IPC and they are acquitted U/s.235(1) of Cr.P.C.
Sentence or OrderIn the result,
Prosecution conducted by Addl Public Prosecutor 2 Of 26 SC No.948/2017
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Defence Conducted bySri. K.G. Janardhan Reddy Counsel for accused
This case was committed by the IX Metropolitan Magistrate, Kukatpally at Cyberabad. vide PRC 34/2017.
This case having come up before me for final hearing in the presence of the Addl. Public Prosecutor for the State and of K.G.
Janardhan Reddy, Counsel 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 charge sheet filed by the P.S. Kukatpally against the accused persons 1 to 5 for the offecne U/Sec.395 of IPC.
2.The averments of the charge sheet as in following lines:
On 22-05-2017 at 04.00 hours the complainant Sri. Jella Venkata
Satyanarayana lodged a complaint stating that on 21-05-2017 at about 2330 hours he and his friends Madhu and others who are residing at
Vivekananda Nagar colony, Kukatpally came from Raichur in a car. The complainant was residing at Bachupally as such his friends dropped him near Vasantha Nagar colony Archie, KPHB. From there the complainant boarded in a sharing auto to come to Bollaram X road. On the way the auto driver filled fuel in Indian Oil Petrol Pump beside
Calvary temple Archie, Hydernagar and after that the driver and three others were taken their auto place inside Mathrusri Nagar and bet the complainant indiscriminatingly with hands caused bleeding injuries on his left eye brow and lip and forcibly snatched away one mobile, 2 ATM cards, one reliance insurance cheque Rs.19,636/-, driving license, RC of two wheeler and net cash of Rs. 5,000/-, thrown him and fled away from the spot. The complainant reached his home and informed the same to his wife and got first aid at Balaji Hospital, Bachupally and 3 Of 26 SC No.948/2017
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came to police station Miyapur and gave complaint. The complainant was referred to Pranam hospital for treatment.
3.Basing on the complaint, the investigation officer LW 11 B. Manik
Reddy registered the case in Cr. No. 556/2017 under sec. 395 of IPC and handed over the case file to LW 12 K. Narsimha Reddy. LW 12 examined the complainant, visited the scene of offence and inspected the spot in the presence of Lws 4 Shaik Sattar Basha and LW 5 Sri. A.
Kiran Kumar and conducted scene observation panchanama, drawn rough sketch. LW 12 observed the CCTV Cameras at the crime scene, basing on that retrieved the CCTV footage with the help of LW 8 B
Bhanu and collected the CD of the footages and recorded the statements of LW 8 and collected the certificates under section 65(b) of Indian Evidence Act. He also visited the Jubilee Auto Services,
Miyapur along with LW 1 J. Venkata Sathyanarayana and caused enquiries in surrounding areas and secured the presence of LW 2 A.
Raju and recorded his statement. On 24-05-2017 at 5:00 hours when
LW 12 along with crime party are performing vehicle checking and petrolling near Allwyn X roads, Miyapur, meanwhile one auto bearing
No. AP 28Y 0257 came from Kukatpally side proceeding towards
Chandanagar, on seeing the police, they tried to turn the auto rickshaw to escape from the police. Immediately LW 12 apprehended the auto rickshaw with the help of crime party and found five persons in the auto including auto driver. On enquiry they revealed their identity as
A1 to A5, on interrogation, all the accused confessed their commission of this dacoit and other offences. The confession was recorded before
LW 6 & 7 and seized one auto bearing No. AP 23Y 0257 and net cash of 4 Of 26 SC No.948/2017
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Rs.200/- from the possession of A1, Rs.300/- and one mobile phone
Gionee L-800 with IMEI No. 8608441034981395/8609441034981393 from A2, Rs.200/- and one Photostat driving license copy of LW 1 from
A3, Rs.200/- and one photostat copy of Registration certificate of LW 1 from A4 and cash of Rs.300/- from the possession of A5. On effected the arrest of all the accused produced before the court and remanded them to judicial custody. LW 12 examined and recorded the statements of LW 3 Devdas who is the present owner of the crime vehicle i.e. auto rickshaw Br. No. AP 23Y 0257 in which he disclosed that he purchased the said auto rickshaw from one Smt. Laxmi Gundeipogu, W/o. Raj
Kumar on 18-01-2014 for an amount of Rs.62,000/-, but said vehicle was not transferred to his name and A1 taken his auto rickshaw on rent basis and used the same at the time of commission of offence.
4.On the request of LW 12 K. Narsimha Reddy, the Hon’ble
Metropolitan Sessions Judge, Hyderabad accorded permission to LW 10 to conduct Test identification Parade of A1 to A5 vide proceedings No.
1352/2017 dt. 21-06-2017. Accordingly II-Addl. Junior Civil Judge at
Miyapur, Kukatpally, Cyberabad conducted Test Identification Parade and on 24-06-2017 at the premises of Central Prison, Cherlapally in which the complainant identified all the accused. The investigation reveals that A1 to A5 are close associates and are in having past criminal history who were committed house Burglaries and robberies under the limits of KPHB, Chandanagar and Miyapur Police stations and were arrested and sent to Central Prison. In the third week of April, 2017 after release from jail of accused A2 Muddangula Chinna @ Oleti
Chinna, all the accused gathered, regrouped and formed a dacoit gang 5 Of 26 SC No.948/2017
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in order to commit offences from the passengers boarding the auto hired by A1 Yadaiah and during this period they committed robberies under the limits of KPHB, Bachupally police station. After completion of investigation and after collecting the medical certificates and seen the crime number of the auto rickshaw and RC from LW 3, the investigation officer filed the charge sheet.
5.The IX Metropolitan Magistrate Cyberabad at Kukatpally, had taken the case on file, for the offence U/s.395 against accused 1 to 5 and committed the same to the Hon'ble Metropolitan Sessions Judge,
R.R.District. The Hon'ble Metropolitan Sessions Judge has made over the case to this Court, for disposal according to law.
6.The Accused Nos.1 to 5 are examined under section 228(1) (b)
Cr.P.C and charges for the offence under section 395 IPC is framed against the accused 1 to 5. When the charges are read over and explained to them accused Nos.1 to 5 in Telugu, they pleaded not guilty and claimed to be tried.
7.During the course of trial, the prosecution has examined PWs.1 to 11 and got marked Exs.P1 to P17 and M.O’s 1 to 8. No witnesses were examined on defense side.
8.After completion of prosecution side evidence, accused Nos.1 to 5 have been examined under section 313 of Cr.P.C, they have denied the incriminating evidence, appearing against them in the testimony of prosecution witnesses and reported no defence evidence.
9.Heard arguments on both sides.
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10.The points which emerge for determination are:-
Whether the prosecution has established the guilt of the
accused No.1 to 5 for the offence U/s.395 of IPC beyond all
reasonable doubt?
Point:
11. The prosecution got examined PW 1 to 11 and Ex. P1 to P17 got marked and M.O. 1 to 8 got marked. No witness were examined on defense side.
12. As per the prosecution case on 21-05-2017 the complainant
PW1 boarded a sharing auto to go to Bollaram cross road. On the way the auto driver filled fuel in Indian Oil petrol bunk beside Calvary temple Archie, Hyder nagar and after that the driver and three others were taken their auto inside to Matrusri nagar and they beat PW 1 indiscriminately with hands caused bleedings injuries on his left eye brow and lip and forcibly snatched away one mobile phone, two ATM cards, reliance insurance cheque for Rs.19,636/-, driving license, RC of two wheeler and net cash of Rs.5,000/- and thrown him and fled away.
Basing on the complaint LW 11 head constable registered the case for the offence under section 395 of IPC.
13. To prove the case the prosecution examined 11 witnesses and marked 17 documents.
14. PW 1 is the victim cum complainant, his evidence discloses that on 25-01-2017 in the morning hours he went to Raichur along with his 7 Of 26 SC No.948/2017
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friend to attend a marriage and returned by 11:30 p.m in the car of his friends and he was dropped at Vasantha Nagar Archie. When he was waiting for auto to go to Miyapur cross roads, a passenger auto was stopped there. A1 to A5 were in the auto, he boarded the said auto to go to Miyapur cross roads. On the way the accused stopped the auto at petrol bunk for oil. At the first instance he was sitting at the left side of the auto. At the petrol bunk one of the accused sat on his left side by pushing him. The accused took the auto to Matrusri nagar colony by turning it inspite of his resistance. A2 beat him on his face with hands and forcibly took cell phone, net cash of Rs. 5,000/-, two
ATM cards, driving license, RC and PAN card from the pocket of his shirt. Other two accused, who sat on his right side closed his mouth dragged outside the auto and forcibly took, cheque received by him from Reliance company from his pants pocket and pushed him on the ground.
15.As per the prosecution case and evidence of PW 11, it discloses that on the way the accused stopped the auto at petrol bunk for oil and filled the oil in the tank who filled the diesel in the crime auto examined as PW 11 he stated that at about one year back at mid night 12:00 to 1:00 p.m. One auto came to petrol bank for diesel. He poured diesel in auto and he noticed five persons in the auto. He can identify all five persons. The persons who are in the court hall are the same persons. Witness identified A1 to A5. He further stated that on the next day morning the police recorded his statement and also obtained video clip from the area of the petrol bunk. In cross examination he stated that he has not given any identity particulars of 8 Of 26 SC No.948/2017
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the five persons to the police. He also admits that police did not ask him to identify five persons who came to the petrol bunk in auto.
16.As per the prosecution case the evidence of PW 1 discloses that
PW 1 was waiting for auto to go to Miyapur cross roads. On the way the accused stopped the auto at petrol bunk for oil. At the first instance he was sitting on the left side of the auto. At the petrol bunk one of the accused sat on his left side by pushing him. The accused took the auto to Matrusri colony by turning it inspite of resistance of
PW 1 and robbed the cash, ATM cards, driving license, RC and PAN card from pocket of PW 1 and also robbed Rs. 5,000/- cash, cell phone and beat him at the scene of offence CCTV cameras at Matrusri nagar colony. The said witness as PW 8 stated that on 22-05-2017 he was called by the police Miyapur stating that an offence has taken place during night hours on 21-05-2017 at Matrusri nagar and he checked the CCTV footage at about 10:30 a.m he went to Matrusri nagar association and checked the CCTV footage while checking he found a video of auto from which an elderly person got down and while he was running away four persons caught hold him and beat him and thereafter the said four persons got into the auto and left the place.
He could not see the auto number properly as it had not clearly appeared. He copied the said CCTV footage into a pen drive and on the request of the police, he wrote CD in his laptop and given the CD to the police. He issued a certificate regarding the authenticity of the CD.
The said CD is Ex. P11. He stated in cross examination that he has not mentioned the date, place and incident of the CCTV footage and Ex.
P11 is certificate. He also stated that unknown persons cannot be 9 Of 26 SC No.948/2017
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identified by seeing CCTV footage in night vision. The said camera was installed in isolated place.
17.The main contention of the defense is that as per entire case of the prosecution and as per Ex. P1 complaint it discloses that on the date of alleged incident one auto driver and three persons were travelling in the auto and PW 1 boarded the said auto and on the way the fuel was filled in the auto at petrol pump. Thereafter auto driver and three persons took PW 1 to Matrusri nagar Archie forcibly and robbed mobile phone, ATM cards, driving license, RC, two wheeler and cash of Rs.5,000/- and license insurance cheque for Rs.19,636/- and beat him.
18.The defense counsel is argued that as per the Ex. P1 complaint and prosecution case only four persons traveled in the auto and PW 1 boarded the said auto. PW 11 who filled the fuel in crime auto he stated that he noticed five persons in the auto and he also identified five persons who are A1 to A5 in the court hall. The defense counsel stated that what about PW 1, PW 11 did not state about PW 1. The defense counsel also argued that no identification parade was conducted by the investigation officer with this witness to identify the culprits. PW 11 identified A1 to A5 in court hall. The defense counsel argued that as per the evidence of PW 8 he found a video of CCTV footage at scene of offence, an auto came from that auto an elderly person got down and while he was running away, four persons caught hold him and beat him and thereafter the said four persons got into auto and left the place. As per this witness the five persons were there 10 Of 26 SC No.948/2017
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in the auto one of the person is PW 1. His evidence also does not disclose about the 5th culprit.
19.The definition of section 395 of IPC the punishment for decoity Whoever commits decoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
20.The definition of decoity under section 391 of IPC ‘”when five or more persons co-jointly commit or attempt to commit a robbery, or where the whole number of persons co-jointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “decoity.”
21.The defense counsel argued that the prosecution failed to establish how many culprits were participated in the alleged offence.
He also argued that as per Ex. P1 complaint, auto driver and three persons traveled in the crime auto, in the said auto PW 1 was boarded.
The defense counsel further argued that as per the CCTV footage at scene of offence and evidence of PW 8 it discloses that four persons got down from auto and beat one elderly person and they said four persons got into the auto and left the place. The evidence of PW 8 also disclose that four persons shown in the CCTV footage. PW 8 also did not identify the said culprits. Another eye witness PW 11 he stated that he saw five persons in the auto while filling fuel in the auto. He identified five persons in the court hall who are A1 to A5. The defense 11 Of 26 SC No.948/2017
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counsel further argued that this witness PW 11 did not state about
PW1.
22. The defense counsel relied the judgment between:
Mohanlal Gangaram Gehani Vs. State of Maha Rashtra in
1982 Law Suit (SC) 60.
In para No. 25 the Hon’ble Supreme Court stated that if the appellant was not known to him before the incident and was identified for the first time in the court in the absence of Test Identification
Parade the evidence of PW 3 was valueless and could not be relied upon as held by this court in:
V.C.Sukla Vs. State (Delhi Administration) (1980) 3 SCR 500
“More over the identification of Tripathi by the witness for the first time in the Court without being tested by prior test identification parade was valueless.”
Also relied another judgment of Kanan Vs. State of Kerala 1979 Law Suit (SC) 190
It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I parade to test his powers of observations. The idea of holding T.I parade under
Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability of identify an unknown person whom the witness may have seen only once. If no T.I parade is held then it will 12 Of 26 SC No.948/2017
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be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.
Also relied Another judgment Jarapala Deepala @ Babu Rao
and others Vs. State of A.P in 2005 (2) ALD (Crl.) 818 (A.P)
In para No. 13 “ in a recent decision in Dana Yadav Vs. State of Bihar (Supra), the Apex Court held categorically that when the accused are stranger to the witness and the names of the accused are not mentioned in the FIR or in the statement under section 161 Cr.P.C and if not T.I parade was conducted, conviction cannot be based on the identification of the accused in Court after two years.
24. The defense counsel argued that PW 11 identified the accused
in the Court hall and investigation officer is not conducted T.I parade to
the accused with this witness which is fatal to the case of the prosecution. Admittedly in the present case the investigation officer did not take any steps to conduct T.I parade of the accused persons with PW 11 who is only eye witness to the present case. As per the above judgment, the identification of the accused in the court hall is fatal to the case of prosecution without conducting test identification parade.
25. The defense counsel taken a stand that PW 1 identified all the accused in the court hall and test identification of all the accused was conducted after two months of the incident. PW 1 admits that after two months of the incident, the P.S Miyapur took him to Cherlapally jail for identification of the accused he identified the accused in the jail. In 13 Of 26 SC No.948/2017
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cross examination PW 1 admits that he has seen the accused in the police station prior to jail, prior to test identification of the accused which was conducted by the Magistrate PW 6. PW 6 who conducted test identification parade proceedings she stated that on the requisition of Detective Inspector, Miyapur police station dated 19-06- 2017, after obtaining permission from the Hon’ble Metropolitan
Sessions Judge, Ranga Reddy District, he conducted test identification
proceedings of A1 to A5 in Cr. No. 556/2017 of Miyapur on 24-06-2017, in the premises of Central Prison, Cherlapally. He further states that the witnesses identified the accused A1, A2, A4 & A5 as the culprits he failed to identify the accused No. 3. The said proceedings are marked as Ex. P10. It discloses that PW 1 did not identify A3 in test identification proceedings.
26. The defense counsel relied judgment in this aspect that after lapse of time, test identification proceedings were conducted and there is a chance to see the accused by PW 1 in court premises while remanding the accused. In this aspect the cited judgment in:
Bundu Vs. State of U.P 1992 Law Suit (Allahabad) 602
Inpara No. 12 of the judgment the incident took place on 14-08-77 at 1:30 p.m. The First Information Report was lodged same day at 2:30 p.m by Smt. Shakuntala Devi PW 6 as mentioned earlier. The accused appellant was arrested on 15-08-77 at 12:30 p.m and sent to jail on 16- 08-77. He was put up for identification on 01-10-77 after 46 days from the date of his arrest. There is nothing on record to show that there was any such distinguishing mark of identification on the face of the 14 Of 26 SC No.948/2017
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accused Appellant as to enable these witnesses to retain the same in their mind and to ultimately identify him on that basis in the Jail No explanation has been offered by the prosecution for the delay in holding the test identification parade in Soni Vs. State of U.P 1982 (3) SC Cases 368 the Hon’ble Supreme Court has observed as under:
After hearing the counsel on either side we are satisfied that the conviction of the appellant for the offence of decoity is difficult to sustain. The conviction rests purely upon his identification by 5 witnesses. Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the Appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the Appellant if this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the
Appellant. We therefore, allow the appeal and acquit the Appellant.
In para 13: Similarly in Subhash and Shiv Shankar Vs. State of U.P 1987 24 ACC 507, the Hon’ble Supreme Court has observed inter-alia as under:
Shiv Shankar was not put up for test identification parade promptly.
The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable 15 Of 26 SC No.948/2017
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the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of the features.
Also relied another judgment in State of Andhra Pradesh Vs.
M.V. Ramana Reddy 1991 Law Suit (SC) 379 delay - in holding identification parade, for identification of the accused. No valid explanation given for the delay. The benefit of doubt should be given to the accused. No valid explanation given for the delay. Benefit of doubt should be given to the accused.
In this aspect the prosecution argued that the delay was caused due to filing of the requisition before the Metropolitan Sessions Judge,
R.R. District for conducting Test Identification parade. Thereafter PW 6 was appointed for conducting test identification parade. In this aspect he relied a judgment in:
Dana Yadav Vs. State of Bihar 2002 Law Suit (SC) 882
In para No. 38 C) the evidence of identification of accused in court by a witness is substantive the evidence whereas identification in test identification parade is though primary evidence but not substantive one, and the same can be used only to corroborate identification of the accused by witness in court.
D) Identification parade are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable discharge for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged 16 Of 26 SC No.948/2017
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offence or the accused persons involved in the offence so as to provide that materials to assure itself with investigation is proceeding on right lines and the persons whom had suspects to have committed the offences were real culprits.
E) Failure to hold test identification parade does not mark the evidence of identification in court inadmissible rather the the same is very much admissible in law, but ordinarily identification of accused by witness for the first time in the court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a cheque value to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. In exceptional circumstances only, as discussed above, evidence of identification for the first time in court without the same being corroborated by previous identification in the test identification parade or any other evidence can form the basis of conviction. In the present case as admission of PW 1 in cross examination that he seen the accused in the police station prior to the jail. It discloses that he seen that the complainant and PW 6 saw all the accused in police station prior to conducting of test identification parade. PW 6 who conducted test identification parade of the accused in police station prior to the conducting of test identification parade. PW 6 who conducted test identification parade of the accused did not state that prior to conducting test identification she did not ask the witness PW 1 whether he saw the accused prior to the test identification parade.
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The witness stated before PW 6 that he has no prior acquaintance with the culprits.
27. The prosecution argued that in the present case PW 1 traveled in the auto through petrol bunk and he got injuries with the accused and test identification parade was conducted. PW 11 who is the eye witness says that he saw the accused while filling the fuel and there in an interaction with accused by this witness. The prosecution further argued that PW 2 who is the owner of the auto had given the auto to
A1 is having prior acquaintance with A1 and further argued that the citation of the Allahabad High Court between Bundu Vs. State of U.P does not applicable to the present case. The judgment of the Jarapala
Deepala @ Babu Rao and others Vs. State of A.P is not applicable to the present case. The prosecution further argued the test identification parade was conducted in the present case.
28. In this case the prosecution relied a judgment on Baldev
Singh Vs. State of Punjab
Evidentiary value of – Held – Not a substantive piece of evidence – vague reference of some facts or non-mentioning of some facts not vitiate the FIR. There is no discrepancy between Ex. P1, FIR and the deposition of PW 5 in court. We should remember that Ex. P7, FIR was given within two hours of the incident and PW 5, a lady, would have been in an agitated mind then. In Ex. P7, PW 5 only stated that Sham
Singh fired from his pistol at her husband which struck his chest. That could only be what she inferred. She did not state that her husband died as a result of the above pistol shot. The evidence of PW 5 is 18 Of 26 SC No.948/2017
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substantially in accord with Ex. P7, FIR and the court below was justified in placing reliance on Ex. P7 and the evidence of PW 5.
29. In the present case with regard to the participation of the culprits, there is a contradiction between FIR and evidence of PW 1,
PW8 & PW11. There is a contradictions with regard to the participation of the culprits in the present offence.
30. The prosecution also relied on the Judgment Praveen Kumar
Vs. State of Karnataka
In para 21 Sec. 27 does not lay down that the statement made to a police officer should always be in the presence of independent witnesses. Normally in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus it is only a rule of prudence which makes the court to seek corroboration from independent source, in such cases while assessing the evidence of police. But in cases where the court is satisfied that the evidence of the police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration. In the instant case nothing is brought on record to show why evidence of PW 33 I.O should be disbelieved in regard to the statement made by the accused as per Ex. P35.
31.The prosecution also relied on the judgment: State of Karnataka
Vs. David Razario
The documentary evidence on the tape recorder, customs invoice 19 Of 26 SC No.948/2017
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and the colour photograph M.O. 3 clearly establish that the tape recorder which was earlier with the deceased was the same one which was pawned by the accused with PW 8 and was subsequently sold to F-
W 21 from the evidence of PW 5, it appears that deceased wrapped in shawl, when she first found her bleeding on account of injuries. The weapon used in the assault for causing injuries on the deceased and blood stained shawl were sent for FSL. The FSL report discloses that blood group found on the weapon M.O. 4 was the same as was found on the shawl. 7th para a faint plea was made by the learned counsel
for the accused that for an article of small value, no one would kill an
old lady, particularly when the articles of higher value are not touched.
This plea is really based on suppositions. Robbery can be made of the articles which are easy to be disposed of. Articles of a particular category. In view of the credible evidence on record, it is not necessary to fathhom as to what was in the mind of the accused or find out why valuable articles were not lifted. This is not a case where the prosecution case rests only on the evidence in terms of Section 27 of the “Evidence Act. That was only one of the pieces of evidence. It is therefore, not necessary to decide the question as to whether conviction can be recorded only on the basis of such recovery. The
High Court was clearly in error in directing the acquittal. The impugned order of the High Court is set aside, and that of the trial court is restored.
32. The prosecution relied judgment of Sanjay Kumar @ Gora Vs.
State of Punjab 15th para: We have considered the rival submissions of the parties, 20 Of 26 SC No.948/2017
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and we are of the view that sentencing for any offence has a social goal. In each case, facts and circumstances of that case are always required to be taken into consideration. For the purpose of just and proper punishment, not only the accused must be made to realize that the crime was committed by him, but there should be proportionality between the offence committed and the penalty imposed. It is obligatory on the part of the Court to keep in mind the impact of the offence on the society, and its ramifications including the repercussion on the victim.
33. On perusal of the entire record and evidence of PW 1, 8 and 11 discloses that PW 1 seen the accused persons in police station prior to the test identification parade in jail. Thereafter he identified the A1,
A2, A4 and A5 in test identification parade which was conducted by
PW6 under Ex. P10. PW 11 identified A1 to A5 in court hall and he stated that he saw 5 persons in the auto while filling the fuel during mid night at 12:00 to 1:00 a.m but he did not state about PW 1 and also not identified PW 1. He also not given any identity particulars of five persons during his statement under 161 Cr.P.C. As per the evidence of PW 8, the four persons got down from the auto and checked an elderly person his evidence contradict the evidence of PW1 he stated that at scene of offence A2 beat him on face with hands and took cell phone, Rs.5,000/- cash, two ATM cards, driving license, RC and PAN card from the pocket of his shirt and pushed him on the ground. Whereas PW 8 states that he found a video of an auto from which an elderly person got down and while he was running away four persons caught hold him and beat him and thereafter the said four 21 Of 26 SC No.948/2017
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persons got into the auto and left the place. There is a discrepancy in the evidence of PW 1, 8 and 11 how many culprits are participated in the said offence? Burden is on the prosecution to establish that five persons are participated in the offence. The prosecution failed to establish the same in his evidence. Moreover, PW 1 seen all the accused in police station prior to identification parade. The evidence of PW 11 also not support the prosecution evidence with regard to the identification of the accused and PW 1.
34. In this case after the incident the investigation officer conducted the scene of offence panchanama in the presence of two witnesses PW 3 & 7. PW 3 stated that the police conducted scene of offence panchanama regarding the decoity which took place during night hours and drawn rough sketch under Ex. P3 and sighed on it. Ex. P2 is the scene of offence panchanama. PW 9 he also stated that the police conducted scene observation in his presence. PW 1 who is a victim is his colony person, he admitted that he purchased the crime auto from one G. Laxmi on 18-01-2014 and given auto to A1 on rent. On 25-05- 2017 received phone call from police station stating that his auto was involved in the present case and Ex. P14 is the Agreement cum Cash receipt for sale of Bajaj RE 445 diesel auto, Ex. P15 is RC for the crime auto, Ex. P16 is a permit issued by Regional Transport Authority, Ex.
P17 is form No. 29 & 30 notice of transfer of ownership of auto. In the present case none of the witnesses stated about the crime auto number, the PW 1 nor PW 11 nor PW 8 stated about the crime auto which was involved in the present case basing on the confession of the accused, the police seized the said auto.
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35. With regard to the seizure of the M.O.s 1 to 8 from the accused, the prosecution examined the panchyathdars PW4 & 7 who are the important witnesses to this case. PW 4 he stated that on 25-05-2017 at 7:30 a.m police Miyapur called him and PW 7 to police station he found all the accused in the police in his presence all the accused confessed that they committed offence and they beat person and they seized cell phone, cash, ATM cards, RC and PAN card and other items on 21-05-2017 and also stated that the police seized auto bearing No.
AP 23Y 0257 and cash of Rs.200/- from A1, driving license of PW 1 and
Rs.200/- from A2, Cash of Rs.200/- and Samsung cell phone from A3,
Cash of Rs.200/- and RC of PW 1 from A4, Cash of Rs.300/- from A5 in his presence under cover of confession panchanama and Ex. A4 to A8 are relevant portion of the confession cum seizure panchanama. PW 7 also stated the same and he stated that C.I of police conducted confession and recovery panchanama in his presence and seized mobile phone, RC, cash, driving license and PAN card etc. from the accused. During the course of examination PW 4 stated that when he went to police station, the auto and other objects were in the police station and found material objects on the table in the police station and the accused confessed that they were handed over by them to the police. As per the evidence of PW 4 it discloses that M.O. 1 to 8 were not seized in the presence of PW 4. PW 7 he stated that the investigation officer conducted confession cum recovery panchanama in his presence and seized mobile phone, RC, cash, driving license from the accused but he did not state from which material object seized from which accused under section 25 of the Indian evidence Act. The confession before the police is not admissible in offence under section 23 Of 26 SC No.948/2017
IX ASCJ RR DT.
27 of the Indian Evidence Act provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts a confession or not, as relates distinctly to the fact thereby discovered, may be proved. In the present case PW 4 stated that prior to his arrival the entire material objects on the table of the investigation officer. The material objects not covered from the accused in the presence of PW 4. PW 7 also did not state that which material object was seized from which accused. Surprisingly the evidence of PW 10 (investigating officer) did not state that the accused confessed the offence in the presence of PW 4 and 7 and he also did not state that he recovered the material objects M.O. 1 to 8 in the presence of PW 4 and 7. Moreover in this case, the prosecution failed to mark the material object auto i.e. crime vehicle which is also important material object in the present case. Prosecution not established recovery of material objects. The prosecution relied judgment of Kishanlal Vs. State of U.P in this case cannot claim decoity for defective investigation.
36. Also relied another judgment State Government of NCT Delhi
Vs. Sunil
Recovery of the nicker is evidenced by the seizure memo PW 10. It was signed by PW 10 besides its author PW 17 investigation officer.
The Division Bench of the High Court declined to place any weight on the said circumstance purely on the ground that no other independent witness had signed the memo but it was signed only by “highly interested persons”. The observation of the Division Bench is extracted 24 Of 26 SC No.948/2017
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below:
“It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it would be necessary for the investigating officer to take independent witnesses to the discovery under section 27 of Indian Evidence Act.
and without taking independent witnesses and taking highly interested persons and the police officers and the witnesses to the discovery would render the discovery, at least not free from doubt.”
37. In this case the doctor was examined as PW 5 and marked Ex.
P9 medical certificate. The doctor stated in evidence that he examined
PW 5 at 4:00 p.m who came to the hospital, accompanied by neighbour and found injuries on left eye which is in simple nature and issued Ex.
P9 is the out patient and also stated that similar injuries are possible if a person falls on ground. PW 1 stated that the injury on the left side of forehead and face on left side which is contradicting to the evidence of
PW 5. PW 5 also stated that injuries are possible if a person falls on the ground.
38. As per the discussions above, the prosecution failed to establish the guilt of the accused for the offence under section 395 of IPC beyond all reasonable doubt. Accordingly all the accused are acquitted.
39. In the result, the accused No. 1 to 5 are found not guilty for the offence U/sec. 395 of IPC and they are acquitted U/s.235(1) of Cr.P.C.
The bail bonds of the accused shall stand cancelled after appeal time is over. M.O's 4 to 8 (Total Rs. 1200/-) shall be confiscated to the State 25 Of 26 SC No.948/2017
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M.O. 1 to 3 shall be handed over to the PW 1 after expiry of appeal time.
Dictated to personal Assistant, transcribed by her, corrected and pronounced by me
in the open Court on this the 21st day of December, 2018.
IX ADDL.ASST. SESSIONS JUDGE
L.B.NAGAR, R.R.DISTRICT.
APPENDIX OF EVIDENCE
FOR PROSECUTION:-FOR DEFENCE:-
PW 1 J. Venkata Sathyanarayana.Nil.
PW 2 J. Devadas.
PW 3 A. Kiran Kumar.
PW 4 Naidu Surya Pradeep.
PW 5 Dr. Manish.
PW 6 V. Rajini.
PW 7 G. Karthik Goud.
PW 8 B. Bhanu.
PW 9 Shaik Sattar Basha.
PW 10 B. Manik Reddy.
PW 11 A. Raju.
EXHIBITS MARKED
FOR PROSECUTION:-
Ex. P1 is complaint.
Ex. P2 is scene of offence.
Ex. P3 is rough sketch.
Ex. P4 to P8 are relevant portions of confession cum seizure panchanama of accused No. 2.
Ex. P9 is Medical certificate.
`Ex. P10 is The proceedings of Test Identification Parade along with requisition dt. 24-06-2017.
Ex. P11 is CD along with the certificate issued U/Sec. 65(b) of Indian
Evidence Act by the witness.
Ex. P12 is FIR.
Ex. P13 is two photographs.
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Ex. P14 is Agreement cum cash receipt for sale of Bajaj RE 445 diesel auto registration number AP 23Y 0257.
Ex. P15 is RC book for auto rickshaw number AP 23 y 0257.
Ex. P16 is permit issued by Regional Transport Authority, Sanga Reddy in respect of Auto bearing number AP 23Y 0257 is valid upto 02-03-22.
Ex. P17 is Form No. 29 and 30 notice of transfer of ownership of auto contains 4 papers (marked subject to objection the signature of transfer in Ex. P17 is not there in Agreement under Ex. P14).
FOR DEFENCE:- NIL
MATERIAL OBJECTS MARKED
M.O.1 is Gionee cell phone.
M.O.2 is RC.
M.O.3 is Driving License.
M.O.4 is Rs. 200/- seized from accused No. 1.
M.O.5 is Rs.200/- seized from accused No. 2.
M.O.6 is Rs.300/- seized from accused No. 3.
M.O.7 is Rs.200/- seized from accused No. 4.
M.O.8 is Rs.300/- seized from accused No. 5.
IX ADDL. ASST. SESSIONS JUDGE
L.B.NAGAR, R.R.DISTRICT.