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IN THE COURT OF THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BODHAN.
Present: Smt. S.V.P. SURYA CHANDRA KALA, VII Additional District and Sessions Judge, Bodhan.
Dated this the 28th day of February, 2022
Criminal Appeal No.103 of 2019
1.From what Court the appeal is Assistant Sessions Judge, preferredBodhan.
2.Number of the case in that Court. S.C.No.88 of 22019
3.Name of the appellantA1 Md.Imran Qureshi S/o Saleem Khan, Agedabout28years, Religion:Muslim,Occ:Mutton Business, R/o Madinanagar, Degloor Naka,Nanded Town of Maharashtra State A3 Anwar Khan S/o Rasheed Khan, Aged about 24 years, Religion:Mus- lim, Occ:Auto Driver R/o H.No.9-12- 287, Ahmedpura Colony, Nizam- abad. A5 Shaik Rafeeq S/o Shaik Ali Bakshish, Religion:Muslim,Occ:Auto Driver, R/ o H.No.9-12-17, Ahmedpura colony, Nizamabad
4.Sentence and law under which A1,A3 & A5 were found guilty for the it was passed.offence under section 395 IPC and convicted under section 235(2) Cr.P.C. The property marked i.e. M.O.1(A) to M.O.1(E) i.e. five knives shall be destroyed after appeal or appeal time is over whichever is later. The Scorpio vehicle bearing No.MH26V5849 given in interim custody of the petitioner vide OrdersinCrl.MP.960/2018in Cr.No.38/2018 dt.10-10-2018, the lorry bearing No.AP12U4754 along with load of batteries which are given in interim custody of the petitioner vide Orders in
Crl.M.P.928/2018 in Cr.No.38/2018
dt.27-9-2018 shall made absolute after appeal or appeal time
5.Whether confirmed, modified Confirmed or reversed:
That this Criminal appeal is coming on 28-2-2022 before me for final hearing in the presence of Sri G.Shyam Rao and Sri Md.Wajid Hussain, Advocates for the appellants/A1,A3 and A5, and Additional Public Prosecutor for the State and after having heard and stood over for consideration, till this day, this Court delivered the following:
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:: J U D G M E N T ::
1)This Criminal Appeal is preferred U/sec.374 (3) of the Code of Criminal
Procedure by the appellants/Accused Nos.1, 3 and 5 being aggrieved by the
Judgment of the learned Asst.Sessions Judge, Bodhan by virtue of his
Judgment dated 5-11-2019 in SC.No.88/2019 as found the appellants guilty and convicted them to undergo simple imprisonment for a period of three years each and also imposed fine of Rs.1000/- each and in default of making payment of fine to undergo simple imprisonment for a further period of one month each for the offence punishable under Section 395 of IPC.
2)Grounds of appeal in brief were that the Trial Court failed to consider the written arguments on behalf of the Appellants and came to wrong conclusion.
3).There were several omissions and contradictions in the cross- examination of witness and as per the testimony of Pw1, there were 8 persons whereas as per Ex.P1 and his statement there were 7 persons and also there were discrepancy in the age of the accused or culprits and also there were admissions of Pw1 regarding in stating the things deposed in his evidence and also Pw1 said to have admitted that the accused were shown to him before the Court Banswada and also admission by Pw1 and Pw2 that Pw1 as driver and there was omission to show Pw3 said to have accompanied Pws.1 and 2 to alleged scene and also omissions in the testimonies of Pw4 and Pw8 and owner namely one Neeti Bansal was not examined and also Pw1 said to have deposed that the police shown material objects and the accused before he said to have entered into witness box and the Investigating Officer also admitted regarding alleged discrepancy in alleged testimony of Pw1 regarding number of persons in the Scorpio and confession was inadmissible and there was discrepancy regarding alleged place of offence and identification parade of material objects were not conducted and no evidentiary value could be given to the testimony of Pw1 regarding identity of the accused, as the accused were said to have shown to him. With aforementioned grounds 3 of 31 Crl.A.103/2019 sought to set aside the judgment of the trial Court in S.C.No.88/2019 and acquittal of the Appellant Nos.1,3 & 5. Hence, this appeal.
4)In order to look into the validity, propriety and legality of the Judgment under consideration it is appropriate to have glance at the case of the prosecution, the evidence placed before the Trial Court as well as the appreciation of evidence made by the Trial Court.
5)For the convenience sake the parties will be referred to as, as referred
before the trial Court.
6)It was the case of the prosecution that basing on the report of the defacto-complainant Mohd.Sabeer Khan regarding alleged occurrence, the criminal law was set into motion on 29-8-2019 at 2000 hours in the report alleged that his brother Mohd.Sajid and himself were said to have been running lorry bearing No.AP12U4754. On 24-8-2018 at 7 a.m. said Sajid said to have started in the said lorry from Hyderabad with load and said to have proceeded to Nanded and on alleged unloading the goods parcel on 28-8-2018 at 9-00 P.m. he said to have got loaded at Basna Tea Point to unload at
Katedan Area, Hyderabad.
7). It was alleged that while he was proceeding to Hyderabad on the way at about 01-00 hours on N.H.161 near Brahamnapally village, Hanuman Temple, some unknown persons said to have over-took his lorry in alleged white- colour Scorpio vehicle and said to have stopped their vehicle in front of the lorry across the road, then 8 persons said to be in age group of 30 to 35 said to have got down from the Scorpio vehicle and said to have come to Sajid and said to have talked in Marathi and they also said to have got him down from lorry and said to have beat him with hands and said to have covered his eyes with cloths and said to have tied his hands and legs and said to have gagged cloth in his mouth and they said to have got boarded him at the back side of the Scorpio and said to have taken away from that place and at about 5-00 a.m. they said to have got him down from the vehicle and said to have tied him to a tree beside the road and with alleged help of by-passers, said Sajid 4 of 31 Crl.A.103/2019 said to have got removed the knots and said to have come to know said place as Kohir village of Zaheerabad.
8)On alleged informing to his brother, on his alleged arrival to
Sangareddy, they both said to have rushed to the spot i.e. Brahamnapally village, Hanuman Temple where his lorry was said to have stopped, but the lorry could not be found and also cash of Rs.30,000/- was said to have taken away from said Sajid.
9).They both said to have proceeded to Rajaram Dhaba. On being informed about alleged place as it said to have come under the jurisdiction of
Nizamsagar police station, hence, the defacto-complainant along with his alleged brother Sajid and Rajaram, said to have come to said police station,
Nizamsagar and said to have presented a report and also about theft of
Samsung Mobile, 2 SIMS, lorry worth of Rs.4 Lakhs, load worth of Rs.5 Lakhs and cash.
10)Basing on his report to Lw17/S.I. of Police, Nizamsagar, he registered the case in Cr.No.38/2018 under Sections 341, 342, and 395 IPC. Later, Lw18 CI of
Police, Banswada said to have taken up further investigation by alleged visiting alleged scene. Subsequently on 30-8-2018 he said to have re-visited alleged scene i.e. N.H.No.161 Road and Brahmanapally village gate near
Hanuman temple and in alleged presence of Lws.11 and 12 Garaboina
Venkateshwam and Bandari Chandra Shekar said to have got conducted alleged scene of offence panchanama and said to have drawn rough sketch and also said to have obtained photographs of alleged scene and he said to have re-examined Lw1, the defacto-complainant namded supra as well as alleged statements of Lws.2 and 3 Mohd.Sajid Khan and Maththuwada Rajaram and said to have recorded their statements and later Lw18, the C.I. said to have rushed to another alleged scene at Raipaly cross-road of Zaheerabad main road along with Lws.1,2 and Lws.11 and 12 named supra and said to have conducted 2nd scene of offence panchanama in their alleged presence and he also said to have taken C.C. footage in which lorry and Scorpio were said to have found.
5 of 31 Crl.A.103/2019 11).On 9-9-2018 at 10.00 hours Lw18, alleged Investigating Officer along with Lw.17, the S.I. and his alleged staff while said to have been conducting vehicle checking at Narsingpally cross-road, they said to have apprehended the accused Nos.1 to 3 along with lorry bearing No.AP12U4754 and in alleged presence of Lws.13 & 14 J.Prabhakar and B.Laxmaiah respectively said to have recorded their statements and said to have prepared recovery panchanama of A1.
12).A1 said to have shown the said lorry said to have stolen by them and also the lorry and one knife was said to have seized from alleged possession of A1 and another knife from A3 under cover of panchanama. Later, as per alleged information of A1 and A3, Lw18, C.I. said to have rushed to Ambedkar
Chowrasta, Pitlam and said to have to have apprehended A2,A5 and A6 at 12.45 hous while they were said to have been travelling in Scorpio vehicle bearing No. MH26V5849 and also said to have seized three knives from their alleged possession under cover of panchanama and said Scorpio vehicle from alleged possession of A2. Later A1 said to have led the police personnel, alleged mediators and other accused to the rented house of A8, in which A8 was said to have apprehended i.e. at Pegadapally village at 17.25 hours and scrap batteries weighing 12 tons were said to have recovered from alleged house of A8 under cover of alleged mediators report and later they were forwarded to judicial custody. Subsequently, Lw19, C.I. on assuming charge, said to have filed requisition before the learned Magistrate’s Court, Bichkunda for conducting test identification parade of A1 to A3,A5, and A6. Accordingly, the learned Magistrate/Lw15 said to have got conducted Test Identification
Parade of aforementioned accused in District Jail, Nizamabad and the complainant said to have identified A1 to A3 and could not identify A5 and
A6. On 15-12-2018 Lw19, Investigating Officer said to have deputed his police personnel Lw16 Head Constable of Nizamsagar to examine owner of
Batteries and Lw16, the Head Constable 1258 of Nizamsagar said to have examined Lws.5 to 9 namely Mohd.Muzammil, Abdula Mujeeb, Alisyed Isaq @ Yousaf Ali,Mohammad Gouse and Mirza Afzal Baig and A4 and A7 were 6 of 31 Crl.A.103/2019 shown as absconding and charge sheet was filed against A1 to A3, A5, A6 and
A8.
13)This case was taken on file by taking cognizance by the learned Judicial
Magistrate against the accused persons on 10-1-2019. On appearance of the
appellants/A1,A3 & A5 and other accused before the learned Judicial Magistrate of Fist Class, Banswada copies of documents were furnished to them U/Sec.207
Cr.P.C. and numbered the case as PRC.No.1/2019 against A1,A3 & A5 and other accused persons and the case was committed to the Court of Hon’ble
Prl. Sessions Judge, Nizamabad and on being made over to the Court of
Asst.Sessions Judge, Bodhan for trial was numbered as S.C.No.88/2019.
14) On appearance of the accused persons before the learned Asst.Sessions
Judge, Bodhan, they were examined U/Sec.239 of Cr.P.C., and on hearing both
sides, charges for the offences punishable U/Sec.341, 342, and 395 of IPC were framed against A1, A3, A5 and A6 and under Section 412 IPC was framed against A8, read over and explained to the accused persons in their vernacular language, for which they denied the charges, pleaded not guilty and claimed to be tried the case of the prosecution.
15). In support the case of the prosecution, the prosecution examined
Pws.1 to 15 and got marked Ex.P1 to Ex.P15 and M.O.1( A to E). Pw.1 is said to be the defacto complainant. Pw.2 is said to be the brother of Pw1. Pw3 is said to be the owner of Dhaba , Pw4 is said to be the owner of vehicle bearing No.
MH26V5849, Pw5 is said to be the owner of Batteries, Pw6 and Pw7 are said to be the circumstantial witness, who said to have loaded the Batteries in the lorry. Pw8 is the circumstantial witness who said to have arranged the lorry to transport the batteries. Pw9 is the circumstantial witness who is said to be alleged purchaser of Batteries. Pw10 is alleged mediator for alleged scene of offence panchanama, Pw11 is alleged mediator for alleged recovery of articles from A1 to A3, A5 and A8 Pw12, Pw13 and Pw15 are the Investigating
Officers, Pw14 is the learned Judicial Magistrate of First Class, who said to have conducted Test Identification Parade.
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Ex.P1 is the statement of Pw1, Ex.P2 are photographs of lorry bearing
No.AP12U4754, Ex.P3 is the photograph of Scorpio vehicle bearing No.
MH26V5849, Ex.P4 is the photograph of Batteries, Ex.P5 is the scene of offence panchanama along with rough sketch in Cr.No.38/2018, Ex.P6 to Ex.P10 are alleged recovery panchanamas with regard to material objects from A1,A3,
A2 and A5 respectively. Ex.P11 is alleged recovery panchanama dated 9-9- 2018, Ex.P12 is the F.I.R., in Cr.No.38/2018 of Nizamsagar Police Station under
Sections 341,342 and 395 IPC. Ex.P13 is the requisition said to have filed by
S.I. before Pw14, Ex.P14 is the letter to the Hon’ble I Addl Dist. & Sessions
Judge, Nizamabad seeking permission to conduct Test Identification Parade,
Ex.P15 is the Test Identification Parade report of Pw14 dated 29-9-2018. M.O.1 knives(5) and prosecution evidence was closed.
16)After closure of the prosecution evidence the accused were examined U/
Sec.313 Cr.P.C., by the trial court to enable them personally and to explain incriminating evidence available on record or circumstances appearing against them, and the accused denied the evidence and reported no witnesses to be examined on their behalf.
17)On hearing arguments of both the sides, as the evidence on record was found sufficient, hence the trial Court found the Appellants 1,3,5 & 6 guilty and convicted them accordingly and sentenced them to undergo imprisonment as referred supra. Being aggrieved with the same, the present Appeal came
before this Court for consideration.
18) Heard arguments of both sides and perused the record.
19) Now the points for determination are;
i)Whether the prosecution established the guilt of the accused beyond all reasonable doubt for the charged offences punishable under Sections 341,342 & 395 IPC? ii)To what relief?
Point No.i :
20)In order to look into propriety and legality of the Judgment passed by the learned Assistant Sessions Judge, Bodhan, the evidence available on record is 8 of 31 Crl.A.103/2019 is the evidence of Pws.1 to 15 referred supra as well as Ex.P1 to P15 and M.O.1 referred supra.
21)As the trial Court convicted the accused A1, A3, A5, A6 and A8 for the offences punishable under Sections 395 and 412 IPC only, it has to be verified whether the evidence on record is found sufficient in establishing the charged offence punishable under Section 395 IPC against Appellants/A1,A3,A5.
Section 391 of IPC defines the offence of dacoity.
As per said provision “ When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly 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 “dacoity”.
Section 390 of IPC defines the offence ‘robbery’. As per said provision “In all robbery there is either theft or extortion. When theft is robbery.—Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.—Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.—The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.”
By virtue of Section 378 IPC which defines the term ‘theft’.
As per said provision “Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per- son’s consent, moves that property in order to such taking, is said to commit theft.
Under Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Under Explanation 2.—A moving effected by the same act which affects the severance may be a theft.
Under Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
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Under Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Under Explanation 5.—The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.”
So, in every offence of dacoity, there is element of theft and robbery.
22.Now it has to bee seen whether the evidence on record is quite sufficient to bring home the guilt of Appellants/A1,A3, & A5 for the charged offence under Section 395 IPC.
23.Now the evidence available on record is the evidence of Pw1 to Pw15 coupled with Ex.P1 to Ex.P15 and M.O.1(A to E) referred supra.
24.Now it has be seen whether there is any report regarding alleged commission of offence with respect to theft of any article or committing robbery or dacoity. In the instant case, there is evidence of Pw1 in this regard with regard to alleged commission of offence who is said to be defacto- complainant. Pw1 categorically deposed regarding working as lorry driver and he claimed that the lorry bearing No.AP12U4754 said to have belonged to his brother Lw2/Sajid Khan. He deposed regarding loading goods on 24-8-2018 from Hyderabad to Nanded and about alleged reaching Nanded on 25-8-2018 as well as about alleged unloading the goods in Nanded and alleged keeping his vehicle at transport office to hire vehicle upto Hyderabad by loading some other goods. According to his further testimony on 28-8-2018 he said to have loaded scrap batteries at Bafna Tea Point, Nanded and deposed about alleged starting from Nanded alone, in his alleged lorry referred supra to come to Hyderabad from Nanded to Degloor via Pitlam to Hyderabad.
25.As per his further testimony, he said to have reached near Hanuman temple at about 1-00 a.m. at unknown area. At that time one Scorpio white- colour vehicle, said to have over took his vehicle and said to have stopped in front of his lorry. Hence, he said to have stopped his vehicle and he further deposed there were 8 persons in the said vehicle and one person was said to 10 of 31 Crl.A.103/2019 have been driving the Scorpio vehicle and deposed remaining 7 persons were said to have got down from the vehicle.
26.As per further testimony of Pw1, 7 persons said to have possessed knives in their hands and deposed 5 persons said to have dragged him from the Cabin of lorry and also said to have tied his hands with rope and said to have tied hand-kerchief to his eyes and deposed about alleged dragging him into Scorpio vehicle when they said to have started speaking in Marathi and deposed about alleged moving of said vehicle and alleged travelling up to 3 hours and alleged stopping the vehicle and alleged tying him to Neem tree beside the road and alleged leaving the said place by the said persons.
27.He further deposed the time as 5-00 a.m. on 29-8-2018 and he was said to have untied by alleged by-passers and alleged enquiry from them, Pw1 said to have informed that he was between Kohir and Zaheerabad and he deposed about alleged reaching to Sangareddy and alleged calling to his brother over phone and said to have informed about the incident and deposed about alleged arrival of his brother at 1-00 p.m. to him and alleged reaching by himself and his brother in the bus to alleged place of offence where his lorry was said to have stopped and deposed about alleged approaching
Lw3/Rajaram, alleged owner of Banjara Dhaba, with whom he claimed he had acquaintance and alleged informing about the same to him i.e. about alleged incident and alleged proceeding all of them to alleged place of offence and alleged proceeding to alleged Nizamsagar Police Station to present Ex.P1 statement. He deposed the worth of lorry stolen as 4 Lakhs and worth of batteries of 12 tones as Rs.5 Lakhs and deposed about theft of cash of
Rs.30,000/- said to have kept in the lorry as well as cellphone was lost. He deposed of stating to the police about his ability to identify the accused and deposed the age of alleged offenders as 30 or 35 years old only. He deposed about alleged conducting Test Identification Parade and deposed regarding alleged identifying A1 and A3 in Test Identification Parade and identified A1,A3,
A5 and A6 before the Court as well as identified the lorry, Scorpio vehicles, batteries and knives under Ex.P2 to Ex.P4 photographs as well as M.O.1.
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28.During cross-examination Pw1 deposed in Ex.P1 there was mention of 8 persons and as per his statement there were 7 persons and deposed 8 persons was the correct statement and deposed the ages of the accused was stated as 25 to 30 years. He admitted of not stating that he reached Nanded on 25-8-2018 and not stating about the goods loaded as scrap batteries and deposed he stated as batteries and also deposed of not stating in Ex.P1 and in 161 Cr.P.C alleged scene of offence as Degloor to Pitlam Road and admitted of not mentioning and stating in Ex.P1 and his 161 Cr.P.C that out of 8 persons, one was sitting in Cabin and 7 persons came to him and also admitted of not stating that the accused closed his mouth with Kerchief and tied his hands with rope and continuing or occurrence of offence for 3 hours as well as not mentioning the name of the tree in Ex.P1. Even deposed about not mentioning and not stating in Ex.P1 and 161 Cr.P.C. regarding alleged making telephone to his brother.
29.He denied of not stating in Ex.P1 and 161 Cr.P.C that he was driver of lorry and denied of not stating Dhaba name and about alleged proceeding to alleged scene of offence by his alleged brother and alleged Dhaba owner and not finding lorry.
30.From the testimony of Pw1, it was pertinent to note that alleged offence was said to have taken place after mid-night and also as he was said to have taken after alleged travelling for about 3 hours and subsequently when he was left, as he was said to have rescued or untied his hands by the by-passers, he could reach the place on being identifying the area where he was said to have untied by the by-passers said to have proceeded to alleged Dhaba of Pw3.
The approximate age of alleged offenders was deposed by Pw1 i.e. as 25 to 30 years old and also the approximate number of the persons was deposed by
Pw1 whether it was 7 or 8. The material aspect is having more than 5 persons.
From his testimony in view of his admissions, it was proved to be improvement in his statement. The material aspect of batteries was when he deposed about batteries not stating specifically the goods as scrap batteries said to have loaded in the lorry would not go to the root of the case. From the 12 of 31 Crl.A.103/2019 testimony of Pw1, it was further clear that the police shown the accused to him within 15 days at the police station and also he admitted that the accused was shown to him at Banswada Court. So, when he deposed he identified A1 and
A3 in Test Identification Parade, in view of his admission, as the accused A1 and A3 were shown to him in the police station and before the Court,
Banswada, it was the reason he could identify A1 and A3 in the Test
Identification Parade. At the same time, his testimony with regard to identifying the accused need not be discarded as he identified the accused even after lapse of years before that trial Court as he identified A1, A3 &
A5(and A6) before the Court. Even by not attaching evidentiary value to the testimony of Pw1 regarding identifying in the Test Identification Parade of A1 and A3 as it was proved as having been showing prior to the parade, but identifying the accused A1,A3, A5 and A6 before the Court assumed significance.
31.There was no suggestion put-forth to Pw1 that Pw2 was not his brother or his brother was not the owner of lorry and also it was not disputed that Pw1 as driver. By taking Pw1 to a remote area by unknown offenders and leaving after travelling for about 3 hours, definitely said act caused fear in the mind of
Pw1. It was nothing but putting Pw1 in fear of injury. There was no suggestion at all that Pw1 did not proceed at all on the lorry along with load of batteries from Nanded to Guntur. When he claimed that there was no cleaner in his lorry and he alone proceeded, no eye witness could be expected, except the testimony of Pw1 with regard to said occurrence. What is the material aspect is stopping of Pw1 when proceeded on the high-way and taking him from the lorry into the Scorpio and shifting to some other place and noticing or found missing of lorry along with load of batteries, cash and cell phone.
32.Pw2 is said to be the brother of Pw1 as well as said to be the owner of lorry referred supra. He categorically deposed about working of Pw1, his brother as driver of said vehicle. He corroborated and supported the testimony of Pw1 regarding loading of scrap batteries on 28-8-2018 by his alleged brother, Pw1 at Nanded to come to Hyderabad and deposed about 13 of 31 Crl.A.103/2019 alleged receipt of phone call from Pw1 by him in the morning hours of 29-8-2018 and about alleged informing about alleged incident by Pw1. On being informed by Pw1 about presence of Pw1 at Sangareddy, Pw2 said to have proceeded and said to have met Pw1 and he corroborated the testimony of Pw1 regarding alleged proceeding to Dhaba of Pw3 and about presenting report. He claimed that by filing petition before the Court to return of lorry along with batteries, he received lorry and batteries and also deposed about alleged handing over of batteries to alleged owner Deepak Seth.
33.During cross-examination Pw2 admitted of not stating in his statement that Pw1 as his driver. He denied of not stating to the police that the culprits left Pw1 between Kohir and Zaheerabad. He deposed that he did not hand over receipt to show he delivered batteries to Deepak Seth. Pw1 and Pw2 both deposed after 15 days of incident said they had seen the lorry, but there was no suggestion put-forth to Pw2 that he was not the owner of the said lorry and never engaged his lorry to load with load of batteries at Nanded to come to
Hyderabad and Pw1 was not the driver.
34.But from the perusal of Ex.P1 statement, there was specific mention with regard to leading life by Pw1 and Pw2 by running said lorry. However, there was no specific mention of reaching Nanded on 25-8-2018 but proceeding of Pw1 from Hyderabad to Nanded on 24-8-2018 at 7-00 p.m along with parcel was mentioned, as well as unloading lorry was also mentioned and proceeding from Nanded along with 12 tons of batteries on 28-8-2018 at 9-00 p.m. via Pitlam, Narsingraopaly Chowrasta was also mentioned. The time of alleged occurrence was also mentioned as 1-00 a.m.
and alleged proceeding of unknown offenders coming by Scorpio vehicle on
NH-161 near Brahmanpally Hanuman temple, alleged over taking with their
Scorpio vehicle, by keeping across the same to the lorry by the persons of aged around 30 to 35 years was also mentioned. There was mention regarding number of persons as 8 and the same was deposed by Pw1. Though there was mention regarding keeping Pw1 under fear to kill him if he raised voice, by showing knives and beating him with hands, but Pw1 did not depose said 14 of 31 Crl.A.103/2019 things. Taking Pw1 in the said Scorpio and shifting to some other place and tying to a tree at 5-00 a.m., was mentioned, the same was deposed by Pw1.
So, the material aspects of untying by the by-passers, informing to his brother
Pw2 and noticing missing of lorry near Brahmanapally, Hanuman temple, where the lorry was said to have stopped and proceeding to Rajaram Dhaba and on being informing by Rajaram regarding limits of jurisdiction of
Nizamsagar, proceeding to Police Station by Pws.2 and 3 to give report was mentioned in Ex.P1 and the said material things were deposed by Pw1 and were corroborated by Pw2 and even the worth of lorry, batteries and missing of the same as well as mobile was also mentioned. Ex.P1 was silent regarding missing of cash of Rs.30,000/- specifically.
35.Pw3 said to be the owner of Dhaba namely Rajaram also corroborated the testimony of Pws.1 and 2 and having acquaintance with Pw1 was deposed by Pw3 by deposing he knew Pw1 and he used to visit their Dhaba. He also supported the testimonies of Pw1 and Pw2 regarding their alleged arrival to him to his Dhaba on 29-8-2018 in the evening hours and informing about alleged occurrence and also proceeding along with them to alleged scene by him and noticing no lorry and alleged informing by him regarding the place of said occurrence as Nizamsagar and proceeding along with Pws.1 and 2 to said police station to give report. So, it was not at all denied by defence by way of specific suggestion to Pw3 that he was not the owner of Dhaba and Pws.1 and 2 never came to him or not proceeded together, to present report. The things deposed by Pw1 subsequent to occurrence in the presence of Pws.2 & 3 was deposed and corroborated by Pw3.
36.Pw4 is the witness from Nanded, who said to have been doing transport business in Nanded. He claimed that he knew A4 as the driver and he was the person who said to have entrusted his alleged vehicle Scorpio to A4.
He categorically deposed about alleged arrival of A4 to him on 28-8-2018 in the morning hours and said to have requested him to provide alleged Scorpio vehicle of Pw4 to attend alleged marriage of A4’s friend’s sister in Nizamabad for rent of Rs.3000/-. Accordingly, Pw3 said to have provided 15 of 31 Crl.A.103/2019 said vehicle bearing No.MH-26V5849 and Pw4 deposed A4 said to have paid
Rs.500/- as advance and about alleged taking the vehicle of Pw4. According to further testimony of Pw4, on the next day evening at 6-00 p.m., A4 said to have returned his vehicle to him and deposed about alleged taking of his vehicle on rent again by A4 after 7 or 8 days and after 2 days of alleged taking vehicle by A4, the police, Banswada said to have called him over phone and said to have informed regarding alleged usage of his vehicle in alleged commission of theft. He deposed that by filing petition before the Court, he said to have received his alleged vehicle and claimed that his vehicle was with him and Ex.P3 the photograph is said to be of his vehicle was marked.
37.From the cross-examination of Pw4 though it appeared by virtue of his admission that licence for taxies was different from licence for domestic vehicles and he had no transport licence to run 7 vehicles as Taxies and admittedly he had no permit to run private vehicles. He claimed that he had 7 vehicles as well as 7 drivers for the said vehicles and not running private vehicles as Taxies, but the factum of having vehicles and giving vehicles on hire was undisputed by defence by way of specific suggestions. When he claimed of not giving vehicles to any one without any driver and his vehicles to drive by the customers, but he deposed of alleged giving his vehicle to
A4,but it was not specifically deposed whether he engaged driver or only entrusted the vehicle to A4. It was not specifically denied that Pw4 was not the owner of MH-26V5849. As the vehicle when said to have engaged by A4, it was not directly said to have returned to Pw4 by A4, but he was said to have received the same from the Court and he identified vehicle under Ex.P3 photograph and there was no specific suggestion, even in the absence of filing any registered document in respect of said Scorpio vehicle that Pw4 was not the owner of the vehicle. When Pw4 deposed he knew A4 as driver, but the same was not specifically disputed or denied by defence by way specific suggestion. So, it could be considered that by virtue of having acquaintance with A4, Pw4 entrusted his vehicle to A4 on the material point of time, on which date alleged commission of offence was said to have taken place in respect of Ex.P3 vehicle and even Pw1 identified Ex.P3 vehicle.
16 of 31 Crl.A.103/2019
38.Pw5 was also said to be the resident of Nanded, who said to have engaged lorry of Pw2 bearing No.AP12U4754 to load the lorry to take scrap batteries to Hyderabad from Nanded. He categorically deposed regarding running battery shop and also deposed he used to purchase old batteries and scraps and sell new batteries as well as his business transactions with one,
Gupta Battery, Hyderabad with respect to selling of old scrap batteries to its owner Deepak Bhai. According to testimony of Pw5 on 28-8-2018 he said to have called Lw9/Mirza Afzal Baig to arrange a vehicle to take his scrap batteries to Hyderabad. Accordingly, said person said to have arranged lorry bearing No.AP12U4754 and he deposed regarding alleged loading the lorry with alleged help of his workers Lw6 to Lw8 namely Abdul Mujeeb, Ishaq and
Mohd.Ghouse.
39. According to further testimony of Pw5, he said to have loaded 12 tons of scrap batteries in the lorry and even deposed the driver of said lorry as Pw1 and leaving to Hyderabad by Pw1 on the same day night at 9-00 pm. He deposed that on the next day evening i.e. on 29-8-2018 he said to have come to know through Lw9 Mirza Afzal Baig that the lorry which was said to have loaded with batteries was said to have stolen by some persons and he deposed after 15 days, he came to know that the culprits and lorry along with batteries were found and were seized.
40.During cross-examination he deposed the said lorry belonged to
Central Parcel Service, Nanded and deposed of alleged obtaining relevant records from said Transport Agency. In view of suggestion put-forth to Pw5 that Lw6 to Lw8 named supra were working under him, it showed it was undisputed by defence that Lws.6 to 8 as workers or labourers of Pw5. Even there was no specific suggestions or denial by defence that Pw5 was not doing battery business and he never engaged lorry of Pw2 to transport Battery to
Hyderabad. So, the testimony of Pw1 was corroborated in that regard with the testimony of Pw5. As per Pw1 also, he loaded batteries at Nanded to unload in Hyderabad. So, the material aspect of leaving of lorry of
Pws.1 and 2 with the load of Pw5 of battery material to unload in Hyderabad 17 of 31 Crl.A.103/2019 was supported and was corroborated with the testimony of Pw5 on given date.
So, leaving for Hyderabad by Pw1 on 28-8-2018 night was deposed by Pw5.
So, Pw1 also deposed after 15 days accused were shown at Police Station and seen lorry after 15 days and noticing the same by Pw5 was also deposed.
Undisputedly Lw6 to Lw8 named supra were working under Pw5 who said to have loaded the lorry with alleged batteries. So, running battery shop by Pw5 was not disputed or denied specifically by defence. So, through Lw9 Mirza
Afzal Baig, Pw5 engaged the lorry and at his request, said Lw9 who was examined as Pw8 arranged the lorry of Pw1 to transport the batteries to be delivered in Hyderabad and as per Pw1 to Pw3 alleged offence took place while proceeding of Pw1 with load of Pw5 to unload in Hyderabad. The persons said to be workers or coolies who admittedly working under Pw5 also were examined to support the testimony of Pw1 and Pw5 regarding loading of lorry of Pw1 with batteries.
41.Pw6 and Pw7 when they were examined, they corroborated the factum of loading of scrap batteries in the lorry bearing number referred supra with scrap batteries to unload in Hyderabad and also they deposed on the same lines regarding weight of scrap batteries as 12 tons and according to their testimonies, they both worked under Pw5 and claimed that they knew one another as co-workers and deposed they loaded the batteries in the lorry bearing No.AP12U4754 of 12 tons and the said lorry was proceeding for
Hyderabad and deposed after loading at their shop, the said lorry was started at 9-00 p.m. and deposed they came to know through Pw5 that the lorry along with scrap batteries was stolen and Pw6 deposed the weight of scrap items was stated to him by Pw5 and deposed 5 persons were working under Pw5 and deposed their names among whom Pw6 and Pw7 were examined.
42.During cross-examination Pw7 deposed the weight of scrap item as stated as 12 tons and deposed the weight of lorry was also of 12 tons capacity. So, admittedly Pw6 and Pw7 were workers of Pw5 and working under
Pw5 was undisputed. In fact, admitted and engaging lorry of Pw1 with load of 12 tons of batteries was established from the testimonies of Pw5 to Pw7 and 18 of 31 Crl.A.103/2019 proceeding of said lorry with said load of batteries on 28-8-2018 at 9-00 p.m.
was also established and was corroborated with their testimonies.
43.Pw8 was the witness through whom Pw5 got arranged lorry of Pw2 to transport 12 tons of scrap batteries from the shop of Pw5. According to the testimony of Pw8, he said to have been doing transport business under the name and style of “Central Parcel Service”, Nanded and claimed he knew
Pw5. He corroborated the testimony of Pw5 regarding engaging Pw8 to arrange lorry to transport 12 tons of scrap batteries. Accordingly, at alleged request of Pw5, Pw8 said to have sent the lorry bearing No.AP12U4754 on 28-8-2018 to the shop of Pw5 and he also deposed regarding coming to know through Pw1 that lorry and batteries were stolen.
44.During cross-examination, Pw8 deposed Mohd.Imran, Eizaz and himself were working in their office, to which Mohd.Azeezuddin was said to be the owner and he deposed of alleged issuing receipt to Pw5 and copies of Bills to the police. He deposed it might be true of not stating about the date on which
Pw5 said to have asked him to arrange the lorry. No specific denial that Pw5 was not doing battery business or not doing transport business by Pw8 under the name and style of “Central Parcels Services” and it was not denied alleged not asking of Pw5, to Pw8 to arrange the lorry or arranging lorry of Pw2 by
Pw8 for the sake of Pw5 and at the request of Pw5. So, the factum of engaging lorry for Pw5 by Pw8 was the material aspect and the same was corroborated with the testimony of Pw5.
45.Pw9 is said to be an accountant of Gupta Battery shop, Hyderabad. He claimed that he knew Pw5. He was the witness for whose company and at whose request, scrap of batteries were said to have loaded from the shop of
Pw5. He said to have received a phone call from Pw5 on 28-8-2018 and Pw5 said to have informed him that the lorry with load of batteries left from Nanded at 9-00 or 9-30 P.M. and according to his testimony as he did not receive the scrap batteries ( on the next day) on 29-8-2018,hence, he said to have called to Pw5 and he was said to have informed by Pw5 regarding stolen of lorry along with batteries and deposed about delivery of the scrap batteries to 19 of 31 Crl.A.103/2019 their shop after one month of said incident by Pw1 and he deposed that all the batteries were kept in his Godown.
(a).Though he deposed in his cross-examination that one Neethi
Bansal was their owner, when Pw5 testimony would go to show Deepak Bhai was the owner, as he said to have transacted with Pw9, when Pw9 had knowledge regarding transportation of batteries from the shop of Pw5, as his evidence revealed at his instance only, the scrap of batteries load was sent by
Pw5 from Nanded to Hyderabad, hence,non-examination of Neethi Bansal said to be the owner,was not fatal to the case of prosecution as he being the person having in-charge or had knowledge, as he was capable to ask for business transaction of sending load. Hence, at his instance,said consignment was said to have made to Pw5. So, his evidence was corroborated with the testimony of Pw5 in that regard and also Pw5 deposed,he used to sell batteries to Gupta
Battery House, which would show having regular transactions between Pw5 and said Battery House.
46.It was not disputed and not denied by the defence specifically that Pw1 was not an employee or not disputed said consignment. The arrangement from Pw5 to load of batteries at the instance of Pw9 was the material aspect and same was deposed by Pw9.
47.Pw10 is said to be the resident of Brahmanapally village of Nizamsagar
Mandal as well as said to be the mediator for alleged scene of offence panchanama under Ex.P5. He categorically deposed about alleged acting as mediator on 30-8-2018 at 8-30 a.m. at the instance of Police,Nizamsagar along with Lw12/Bandari Chandra Shekar at Hanuman temple on NH.161 and deposed about alleged conducting alleged scene of offence panchanama and drafting rough sketch and signing on the same under Ex.P5 by Pw10 and Lw12
B.Chandra Sekhar. So, as per the testimony of Pw1 to Pw3 and also Ex.P5 and
Pw10 part of one of the scene of offences was at Brahmanapally village near
Hanuman temple,at which Pw1 was said to have stopped along with lorry.
Even as per the testimony of Pw1 also at said Hanuman Temple he was stopped by the persons came in Scorpio.
20 of 31 Crl.A.103/2019 (a).So, by virtue of Section 178(b) Cr.P.C.”where an offence is committed, partly in one local area and partly in another area” and under
Section 178(d) Cr.P.C “where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas”.
(b).So, by virtue of stopping the vehicle of Pw1 and Pw1 at
Brahmanpally village,as it made Pw1 to leave the lorry at the said place itself, on returning of Pw1 along with Pw2 and Pw3,he could not find the lorry at the place at which it was left, hence, the said place was identified as one of the offences. Hence, the same was identified as the scene of offence as basing upon the statement of Pw1 only,it was possible for the Investigating Officer to identify and locate the scene of offence. Hence, it could not be considered there was discrepancy regarding scene of offence. So, part of scene of offence was shown as per Ex.P5 scene of offence panchanama, near Hanuman temple on NH.165 of Brahmanpally village gate of Narsingpally road and as per
Crime Detail Form under Ex.P5 part of scene of offence was identified as near
Neeradi Bhumaiah’s agricultural lands.
48. Pw11 is said to be the resident of Nizamsagar, said to be the mediator for arrest of A1 to A3,A5 and A6 as well as alleged mediator for alleged recovery of material objects i.e. knife as well as alleged recovery of lorry,
Scorpio vehicle and he deposed about arrest of accused A1 to A3, A5 and A6 as well as proceedings of their arrest and recovery of case property under Ex.P6 to Ex.P11 under mediator’s reports and he categorically deposed about arrest of A1, and recovery of M.O.1, knife from alleged possession of A1 as well as lorry under Ex.P6 mediators report at 10-30 a.m. and the place of proceedings under Ex.P6 was Narsingpally cross-road and also he deposed about arrest of
A1,A3 and recovery of M.O.1(b) knife and he identified the photographs of lorry and identified A1 and A3 and deposed about proceedings under Ex.P7 at
Narsinghpally cross-road on NH.161 under recovery panchanama dated 9-9- 2018 at 11-30 hours.
21 of 31 Crl.A.103/2019 (a).Pw11 further deposed about arrest of A2 and deposed about name of A2, but he could not identify A2 before the Court, though he deposed he could identify A2, but instead of identifying A2, he identified A5 as A2 before the Court. According to his testimony, M.O.1knife( MO.1(c) ) was recovered from alleged possession of A2. He also deposed regarding proceedings under
Ex.P8 panchanama dated 9-9-2018 at 13 hours at Ambedkar Chowrasta, Pitlam cross-road in Pitlam village and deposed about recovery of M.O.1 knife from
A2. He also deposed regarding proceedings of recovery panchanama and arrest of A5 on 9-9-2018 at 13.55 hours near Ambedkar statue, Pitlam situated at NH.161 and deposed about recovery of knife from A5 under Ex.P9 mediator’s report. Likewise, he also deposed regarding arrest of A6 and proceedings of arrest and recovery of M.O.1(e) knife from A6 under Ex.P10 said to have conducted near Ambedkar Statue, NH.161 of Pitlam village. He deposed regarding drafting of mediator’s report or reducing the same into writing and signing by them and he even identified A1,A3,A5 and A6, and also
A8, but could not identify A2. However, he could identify A2 by his name.
49.It appeared Pw11 was working as Junior Assistant in MPDO Nizamasagar and at the instance of Police,through MPDO he was secured to act as mediator on Narsingraopally cross-road,hence, the same was deposed by him. So, not filing any Movement Register or written orders, in the absence of passing any
Written Orders of MPDO for acting as mediator by Pw11, does not go to the root of the case and the person from MPDO Office was secured by the police being respectable inhabitant from the place of arrest of the accused from
Narsingraopally cross-road.
50.Pw11 deposed about alleged confession of accused with regard to alleged commission of offence and alleged presence of police when they said to have questioned the accused, hence, no evidentiary value can be attached to the testimony of Pw1 in that regard, with regard to alleged confession of accused as, confession made to police, is inadmissble in evidence. So, by virtue of Section 25 and 26 of Indian Evidence Act, which speaks 22 of 31 Crl.A.103/2019 “Confession to police officer not to be proved.—No confession made to a police officer1, shall be proved as against a person accused of any offence. "
By virtue of Section 26: “Confession by accused while in custody of police not to be proved against him.—No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a
Magistrate1, shall be proved as against such person."
So, the confession is irrelevant and inadmissible in evidence as it is hit by
Sections 25 and 26 of Indian Evidence Act, but the confession leading to discovery of the articles may be taken into consideration, by virtue of Section 27 of Indian Evidence Act,which speaks as under:
“How much of information received from accused may be proved.—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 to a confession or not, as relates distinctly to the fact thereby discovered, may be proved”.
So, how much of information received from the accused may be proved against him regarding recovery of the articles. Pw11 deposed Ex.P2 photographs of lorry were taken at Narsingraopally and pleaded ignorance about the name of photographer and could not depose where Ex.P3 photographs were taken and deposed it was the first time he acted as panch witness and deposed about the distance of Pegadapally village as 10 to 15 kms from Bodhan and could not depose whether any records of ownership of the house of A8 were taken from the Grampanchayat Office. He further deposed 2 Dhaba hotels and 3 to 4 small shops were near Achanpally cross-road and deposed police shown M.O.1(A to
E) and the accused in the Court before he entered into witness box. Hence, voluntariness regarding identity of accused A1,A3,A5, (and A6) cannot be attributed to the evidence of Pw11 in identifying them. However, he could identify the accused with their names and his testimony was corroborated regarding the things incorporated with relevant portions of recovery panchanamas. Hence, weight can be attached to the evidence of Pw11 with regard to proceedings under Ex.P6 to Ex.P11,but he could depose the number independently of the lorry. The same cannot be discarded. When Pw11 acted 23 of 31 Crl.A.103/2019 at the instance of MPDO without any written permission, acting as mediator by him need not be viewed with suspicion, as he was under bounden duty to assist the police and from his testimony it was established regarding arrest of
A1 to A3, A5,A6 & A8 and recovery of M.Os.1 to 5 knives as well as lorry under cover of Ex.P6 to Ex.P11 mediator’s reports.
51.The learned counsel for the Appellants relied upon the Ruling of Hon’ble
Andhra High Court in a case in between Md.Rasheed S/o. Md.Sardar Vs.
Susheela Agarwal reported in I(2005) ACC 560 in which it was pleased to have observed by the Hon’ble Court.
“It is no doubt true that someof the photographs in Ex.A5 bunch show that the front portion of the auto found therein was damaged. But, Ex.A5 photographs. Cannot be taken into consideration because the photographer who took those photographer is not examined. In LAXMAN GANPATI KHOT AND OTHERS VS. ANUSUYABAI AND ANOTHER, it is held “It is only when the person who takes a photograph and develops it into a negative himself comes into the box and deposes to both those facts, that a negative becomes admissible in evidence. As far as the enlarged print is concerned, the position is still worse, for no print or enlargement can be admitted in evidence without its negative being produced and proved in the manner indicated above”.
In the instant case, undoubtedly, the photographer was not examined and the prosecution only relied upon the photographs under Ex.P2 of lorry bearing No.
AP12U4754 and Ex.P3 photograph of Scoropio vehicle bearing No.MH26V5849 and Ex.P4 photographs of batteries. When relied upon Ex.P2 to Ex.P4 photographs, not marked CD or negatives, but at the same time when Ex.P 2 to Ex.P4 photographs were marked, they were marked without any protest,but it was ;not the case that these photographs were taken by a professional photographer, and as per Investigating Officer, the photographs were taken by himself, and when those things were returned to respective witnesses towards interim custody, as per the orders of the concerned Court. Those vehicles were not marked as material objects and also the batteries were not marked as material objects. However, Pws.1 and 2 deposed the registration number of lorry and also Pw4 deposed the number of his Scorpio vehicle as
MH26V5849. When they were deposed as registered owners of their vehicles 24 of 31 Crl.A.103/2019 and entrusting the Scorpio vehicle by Pw4 to A4 was not specifically denied by defence, when Pw1 and Pw2 deposed the number of their lorry and also the other witness deposed engaging the said lorry and the same numbers of vehicles were when reflecting in mediators reports. In the absence of not raising any objection regarding Ex.P2 to Ex.P4 photographs, hence the same could be pressed into service as they were not marked subject to any objection and without any protest. So, the facts on hand are different with that of circumstances enumerated in the ruling mentioned in the above citation.
Even in the absence of negatives or CD and even in the absence of Ex.P2 photographs, the substantial evidence on record goes to show involvement particular property as case property.
52.When Pw2 deposed he received lorry and batteries and the same were said to have delivered to Pw9, as per testimony of Pw9 and also when Pw4 deposed at present his vehicle was with him and by filing petition, he taken return of his vehicle from the Court. The factum being borne by record, could be taken into consideration as the particulars regarding the vehicles of Pw2 and Pw4 were reflecting in mediator’s report. Moreover, Pw11 or any of the
Investigating Officer or any of the witness have no enmity with the accused.
53.So, from the independent testimony of Pw12, the mediator, it was established regarding arrest of A1 to A3, A5,A6 and A8 as well as the proceedings of recovery under Ex.P6 to Ex.P11 mediators reports and recovery of lorry referred supra, material objects 1 to 5, batteries from the possession of
A8 and M.Os.1 to 5 from A1(knife and lorry) from A3,A5 and A6 except A8.
54.Pw12 is said to be the Head Constable who said to have examined Pw5 to Pw8 and Lw8 Mohammad Gouse on 15-12-2018 in Nanded and Pw9 in
Hyderabad on 16-12-2018. By virtue of his testimony it was established of examining of Pw5 in his Star Batteris Shop and examining of Pw9 at Gupta
Batteries in Hyderabad. He denied of not examining at their respective places.
55.Pw13 the Investigating Officer deposed about investigating part of registering the crime by Lw17/UpenderReddy, the S.I. Nizamsagar Police 25 of 31 Crl.A.103/2019
Station on 29-8-2018 and issuing Ex.P12 FIR by Pw14. He deposed about re- examining Pw1 on 30-8-2018, Pw2 & Pw3 at alleged scene and preparing alleged scene of offence panchanama in alleged presence of Pw10 and Lw12
Bandari Chandra Sekhar under Ex.P5 and he corroborated the testimony of
Pw11 regarding arrest of A1 and A3 along with lorry referred supra while conducting vehicle checking. He supported the testimony of Pw11 and the proceedings under Ex.P6 to Ex.P11 recovery panchanamas in all aspects. It appeared from his testimony knife and lorry were seized from A1 under Ex.P6 mediator’s report. Scorpio vehicle and knife were said to have recovered from
A3 under Ex.P7 mediator’s report. Knives were said to have recovered from
A2,A5 and A6 under Ex.P8 to Ex.P10 recovery panchanama reports. Batteries were said to have recovered from A8 under Ex.P11 recovery panchanama.
56. During cross-examination the Investigating Officer admitted that in
Ex.P1 it was stated that 8 persons came out from Scorpio vehicle and in statement of Pw1, he said to have stated about 7 persons, but said discrepancy being minor cannot go to the root of the case as the factum of presence of more than 5 persons was deposed by Pw1. He deposed Pw1 clarified due to darkness he stated number of said persons as 8. He deposed about alleged conducting alleged scene of offence panchanama on 30-8-2018 at 8-30 a.m. whereas the date noted beneath his signature as 29-8-2018.
When crime was registered on 29-8-2018 at 21.30 hours during night time, so the date of preparing of Ex.P5 crime detail form could be considered as 30-8-2018 because in the morning of 29-8-2018 the law was not set into motion. So, in view of mere putting the date near signature by Investigating
Officer as 29-8-2018 cannot render the case of prosecution doubtful. As subsequent to the registration of crime only, the Investigation was commenced when the ocular testimony of Pw13 would go to show he examined the witness Pw1 on 30-8-2018. On examination only, he could ascertain the scene of offence, but the date of preparation was mentioned as 30-8-2018 in Ex.P5 and the date and time of visit to alleged place of occurrence was also mentioned as 30-8-2018 at 8-30 a.m. when Pw11, the mediator was examined, his capacity as government official was undisputed 26 of 31 Crl.A.103/2019 by the defence. Non-securing his I.D.Proof by Investigating Officer would not lesser the evidentiary value of Pw11 as he was secured from MPDO office as no suggestion to Pw11 that he was not a Government Employee. When Pw12 was deputed to examine Pw5, Pw8 and Pw9 and Lw8 Mohammad Gouse, the testimony of Pw13 that he did not inspect the batteries shop of Pw5 and not visited the shop of Pw9 was of no consequence.
57. When batteries were recovered at the instance of other accused as proceeding to the place of arrest of A8 was at the instance of remaining accused only, non-filing any document pertaining to the house from which, batteries were said to have seized under mediator’s report Ex.P11, was of no consequence, as batteries were said to have recovered in pursuance of alleged confession of A1 to A3, A5 and A6 as they said to have led Pw11 and
Investigating Officer Pw13 to A8. As observed earlier, there was improvement in the testimony of Pw1 as admitted by the Investigating Officer, but they were not of vital in nature to go to the root of the case regarding not stating by Pw1 that his mouth was tied with hand-kerchief and hands were tied with rope.
(a).For non-seizure of records by Investigating Officer it will not lesser the evidentiary value of the witness such as Pw2 and Pw4 respective owners of vehicles and the case of the prosecution need not be brushed aside for latches if any on the part of Investigating Officer. Pw13 deposed Ex.P2 photographs were taken by the camera provided to their police station. So, it was not the case of taking photographs by outsider, so non-examination of photographer was not a fatal to the case of prosecution. As per Ex.P11 recovery panchanama, it was mentioned the house to which the accused said to have led Pw11 and Pw13. It was said to be the house of relative of A8 namely Bablu. So, it was not the case that A8 was said to have arrested from his house. It was said to be the house of his relative. The place of proceedings under Ex.P11 recovery panchanamas were undisputed by defence specifically.
So, from the testimony of Pw11 and Pw13, it was established arrest of A1, 27 of 31 Crl.A.103/2019
A2,A3, A5, A6 and A8 and recovery of the vehicles involved in the case as well as material object and batteries.
58.From the testimony of Pw14, the learned Magistrate, who said to have conducted Test Identification Parade as per the proceedings of Chief Judicial
Magistrate, Nizamabad, it was established conducting the parade at District
Jail, Nizamabad and identifying A1, A2, A3 by Pw1, non-identifying A5 and A6 by Pw1. Though he was said to be the incharge of two Courts i.e. Court of
Judicial Magistrate of First Class, Bichkunda apart from the Court of Junior Civil
Judge, Banswada, as per his testimony and Ex.P15 contents as he was
nominated to conduct parade vide Proceedings No.423 dated 10-8-2018 of
Chief Judicial Magistrate, Nizamabad, by virtue of acting in official capacity as per the proceedings of an authority, accordingly when he conducted Test
Identification Parade, which had legal sanctity hence, it could not be viewed with suspicion. It can be considered all officials acts have been regularly performed as per illustration (e) of Section 114 of Indian Evidence Act. Even in the absence of Identification Parade, as observed earlier, as Pw1 deposed the accused were shown to him before Test Identification Parade even after lapse of time as Pw1 identified the accused before the Court, such as A1, A3,
A5, and A6 before the Court, his testimony could be taken into consideration as identifying the accused A1, A3, A5 and A6, was without anyone’s assistance and not at the instance of any. Even after lapse of time also, he could identify
A1, A3,A5 and A6 before the Court. So, it is needless to emphasize on the testimony of Pw14 and Ex.P13 to Ex.P16 Test Identification Parade, requisition letter and proceedings. So, the manner of conducting Test Identification
Parade could not be viewed with suspicion and Pw14 admitted regarding statements given by the accused that they were shown to the witness. The same was admitted by Pw1 but independently he could identify the accused after lapse of time, before the Court.
59.Pw15 was Investigating Officer who said to have examined Pw4 and who said to have filed Ex.P13 requisition before Pw14 to conduct Identification
Parade and at whose instance, Pw12, Head Constable was deputed to Nanded 28 of 31 Crl.A.103/2019 and Hyderabad to examine Pw5 to Pw8 and Lw8 namely Mohammad Gouse and he deposed regarding filing charge sheet on completion of investigation.
60.During cross-examination Pw15 admitted of not stating by Pw4 that the 4th accused again took vehicle 7 or 8 days after he handed over it to him, but the same was not proved as an improvement in view of not suggesting to
Pw4. Hence, it cannot be considered as an improvement. No weight can be attached to the testimony of P15 to his admission in this regard. So, non-examining of the person who said to have removed the ropes of Pw1 and non-seizure of ropes would not go to the root of the case as Pw15 deposed the said person was not traced out. Being by-passer as it was not the case of Pw1, he ascertained the name and particulars of by-passer who said to have removed his ropes and also it was not the case of Pw1 that he handed over either the Kerchief or rope to the police. So, non-seizure of those articles will not go to the root of the case.
61.So, in the instant case, the prosecution by virtue of the testimony of alleged victim coupled with corroborative testimonies Pws.2 and 3 who deposed about the things occurred subsequent to the occurrence was able to establish taking place of alleged incident of committing offence of robbery by the accused and also it was able to establish from the testimony of Pw4 entrusting his Scorpio vehicle bearing No.MH26V5849 to A4 with whom Pw4 had acquaintance and it was not returned by A4 to Pw4, but it was said to have recovered from A3 under Ex.P7 recovery panchanama. The prosecution was able to establish from the testimony of Pw5, he loaded scrap batteries in the lorry of Pw1 on given date and missing of lorry with load, when arranged said lorry by Pw9, when loaded by Pw6 and Pw7 and it was established capacity of the material batteries loaded in the lorry of Pw1 and from the testimony of Pw8 it was established engaging lorry of Pw1 to transport 12 tons of scrap batteries to Hyderabad, as the weight of scrap batteries was deposed by Pw6 and Pw7 who loaded in the lorry, with the same capacity and the factum of consignment at the instance of Pw9 for the sake of Pw9 was supported, corroborated and was established from the testimony of Pw9.
29 of 31 Crl.A.103/2019 (a).Non-receipt of scrap batteries on 29-8-2018 and subsequent delivery after one month was established from the testimony of Pw9 who deposed having dealings with Pw5 in that regard. From the testimony of Pw10 it was established the scene of offence as Hanuman temple near Brahmanpaly,
N.H.161 and from the testimony of Pw11, mediator, it was established the arrest of A1,A2,A3, A5, and A6 as well as recovery of vehicles such as lorry,
Scorpio vehicle referred supra, batteries, knives, material objects under Ex.P6 to Ex.P11 recovery panchanama. When it was the case of Pw11 that he was shown the accused and material objects before he entered into witness box, but at the same time, he could not identify A4 and A5, but the factum of arrest of particular person with name on given date, time and place and recovery of articles were deposed by Pw11 when corroborated by Investigating Officer
Pw13, could be taken into consideration and examining of Pw5 in Nanded, the battery shop owner as well as Pw6, Pw7 the workers of Pw5, as well as Pw8 at whose instance, the lorry of Pw1 and Pw2 was engaged by Pw8, and examining them at their respective places was established. Likewise, Pw9 to whom the consignment was delivered after recovery was also examined in
Hyderabad. In the absence of any enmity with witness, no need to implicate accused. So, the prosecution is able to establish alleged commission of offence under section 395 of IPC. which prescribes punishment with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. So, the prosecution was able to establish 5 or more persons conjointly committed robbery and while committing said offence conjointly, they were in the presence of Pw1 and it was established they aided one another in commission of offence. So, every person so committing or aiding, he said to have committed offence of dacoity as defined under Section 395 IPC.
62.While committing theft of lorry and batteries, it was done without the consent of Pw1. The accused committed theft, as they intended to take dishonestly out of the possession of Pw1 without PW1’s consent as moved the lorry with the load of scrap and also committed theft of scrap batteries, cellphone, hence while committing theft of said articles in order to commit 30 of 31 Crl.A.103/2019 theft or intending to commit theft of said articles, the offenders put Pw1 in fear of instant death or instant hurt or instant wrongful restraint and by virtue of taking Pw1 by getting him down from the lorry in the Scorpior vehicle as they taken Pw1 to a distance by travelling for 3 hours, as it caused fear of death or instant hurt, hence, it can be considered, the evidence on record satisfied the necessary ingredients of the offence of dacoity as the accused conjointly committed the offence. Hence, the trial Court rightly found A1,A3,A5 guilty and sentenced them to undergo imprisonment for 3 years each and fine of
Rs.1000/- each and in default of making of fine imposed sentence of imprisonment for one month each as punishment prescribed is imprisonment of life or rigorous imprisonment for a term which may extent to 10 years under Section 395 of IPC for the offence of dacoity.
63.As the evidence on record is sufficient to establish the identity of A1,A3,
A5 for the charged offence under Section 395 IPC, hence, the trial Court rightly convicted the appellants and imposed reasonable sentence. Hence, it does not warrant any interference and it is needless to emphasize more on the aspects which are subsidiary in nature.
64.In view of non-producing the case property and not filing the CD or negatives of photographs even otherwise also, the acts of accused constitute the offence of attempting to commit robbery and the punishment prescribed is one and the same and the evidence on record satisfied the necessary ingredients of definition of “dacoity” under Section 391 IPC. As the same punishment is prescribed for attempt also.
65.By virtue of Section 511 IPC. which speaks of punishment for attempting to commit offence punishable for life or either imprisonment and in the such attempt does any act towards commission of offence, shall, where no express provision is made by the Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence for a term which may extend to 1 ½ of imprisonment for life or as the case may be 1 ½ of the longest term of imprisonment provided for that offence or with such fine as is provided for the offence or with both.
31 of 31 Crl.A.103/2019
66.When the definition for the offence of docity under Section 391 IPC.
included attempt to commit robbery conjointly by five or more persons and persons present or aiding such attempt or commission when amounted to 5 or more, hence, it is defined that every person so committing or attempting or auditing is said to have committed ‘dacoity’. So, the conviction for the offence of dacoity can be held proper as the attempt to commit the robbery is also included in the definition of dacoity.
67.There is no impropriety or illegality in the judgment of the trial Court in finding the Appellants guilty and in convicting them as mentioned supra, which is in accordance with law which does not warrant any interference as the prosecution is able to bring home the guilt of Appellants/A1,A3, & A5 beyond all reasonable doubt for the charged offence punishable under Section 395 IPC. Accordingly, this Point is determined.
68. Point No.2:In the result, this Criminal Appeal is dismissed confirming the Judgment of the trial Court in .C.No.88/2019 in finding the
Appellants/A1,A3 & A5 guilty for the offence punishable under Section 395 IPC and in convicting them and sentencing them to undergo simple imprisonment for a period of three years each and to pay a fine of Rs.1000/- each and in imposing default sentence of simple imprisonment for one month each for non-payment of fine amount for the charged offence punishable under Section 395 IPC..There is no modification with regard to set-off given by trial Court.
Appellants are at liberty to prefer further appeal if necessary by obtaining free legal aid.
The trial Court is directed to take steps to execute sentence, by issuing
NBW against the appellants/convicted/accused Nos.1,3 & 5.
Dictated to Steno, transcribed and typed by him, corrected and
pronounced by me in open Court on this the 28th day of February, 2022.
Sd/-
VII Additional District and Sessions Judge, Bodhan.