Smt T Rajani

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IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE-

CUM-SPECIAL JUDGE FOR TRIAL OF CASES UNDER PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES ACT, 2012, HYDERABAD.

Dated this the 11th day of January, 2016

PRESENT : SMT. T. RAJANI,

METROPOLITAN SESSIONS JUDGE,

FAC I ADDL. METROPOLITAN SESSIONS

JUDGE, HYDERABAD.

SESSIONS CASE PCS NO.19/2015

Crime Number and Police StationCrime No.203/2014 of PS Nampally, Hyderabad. Name and description of the accused G. Rohit Kumar, S/o. G. Tukaram, personAged 20 years, Occ: Courier Boy in Amys Bouytique, R/o. Plot No.97, Near Mohini Function Hall, Jafferguda, Karwan, Hyderabad. Prosecution conducted bySri K. Pratap Reddy,

Additional Public Prosecutor.

Accused defended bySri. Mohd. Rafathullah, counsel. Offences chargedUnder Sections 342, 354-A of IPC and Section 8 of The Protection of Children from Sexual Offences Act, 2012. Plea of the accusedPleaded not guilty. Finding of the CourtFound guilty. RESULTIn the result, the accused is found not guilty for the offence punishable under Section 8 of POCSO Act, and hence he is acquitted under Section 235(1) Cr.P.C. But, however he is found guilty for the offences punishable under Sections 342 and 354-A of IPC and hence he is convicted under Section 235(2) Cr.P.C.

Hence, the accused is sentenced to pay a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months for the offence punishable under Section 342 IPC. For the offence punishable under Section 354-A IPC, the accused is sentenced to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of 6 months. Out of the fine amount, Rs.5,000/- shall be paid to the victim girl, who is PW4 in this case.

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:: J U D G M E N T ::

1.The facts of the case briefly, as per the charge sheet are as follows:-

On 21.6.2014, at 2230 hours, the complainant lodged a complaint stating that on the same day at about 9.00 pm, when she was getting down to get the house keys from watchman, the accused, who works with one Arshad called her from his office room I.e, flat no.G-4 and told her that a parcel is sent to them by her father and the same in his office and called her inside to collect it, and when she refused to go inside the flat, he forcefully dragger her inside and kissed her and started touching her waist and was proceeding and she was unable to move as he caught her. Then, she started shouting and he left her and when she is trying to run, he hold her tightly again and when she started screaming louder, the accused ran from there. Based on the said complaint, a case was registered in

Cr.No.203/2014 under sections 342, 354-A(1) of Criminal Law Amendment

Act and section 8 of Protection of Children from Sexual Offences Act.

During investigation, the investigating officer recorded the statement of the victim girl and other witnesses,, effected the arrest of the accused, conducted scene of offence panchanama and rough sketch, effected the arrest of the accused, and after concluding the investigation filed charge sheet under sections 363, 342, 354-A(1) IPC of Criminal Law

Amendment Act and section 8 of Protection of Children from Sexual Offences

Act.

2. This court took cognizance of the case and on appearance of the accused, complied with all the required legal formalities. Based on the prima facie material, a charge for the offence punishable under sections 342, 354-A IPC and section 8 of Protection of Children from Sexual Offences Act 3 were framed against the accused. After recording the plea of not guilty by the accused, case was tried, during the course of which, PWs 1 to 6 were examined and Exs.P1 to P4 marked on behalf of the prosecution. After concluding the prosecution evidence, the accused was questioned about the incriminating circumstances appearing in the prosecution evidence. He denied the same and reported no evidence on his behalf.

3.Now the points that arise for determination are:-

1) Whether the testimony of the victim is confidence inspiring and whether the prosecution could prove the guilt of the accused for the offence with which he is charged beyond reasonable doubt.

2) To what result.

POINT NO.1:-

4.PW1 is the mother of the victim. According to her evidence, the victim was studying IX standard at the time of this case. About more than one year back, went out for some shopping and returned at about 8.30 p.m.

Her son was not at home and he handed over the keys to their watch man.

She asked the victim to go and get the keys and they were waiting for her to return. But, suddenly, she heard her screams. They reside in the 2nd floor.

After hearing the screams, she rushed to the stairs and saw the victim coming up and she was literally shivering and was not able to talk. She hugged her and they sat on the stairs and she asked her as to what happened. The victim told her that on the 1st floor, there was one boy named Rohit and that while she was coming up, after taking the keys, he told her that her father sent a parcel and asked her to come inside and take the parcel and that she refused to go and that the said boy pulled her by her hand and dragged her inside the apartment where he works and held her 4 tightly and that she started screaming loudly and on that, the said boy got frightened and let her go, by opening the door and that the said boy locked the door and ran away. On the same night, she took her daughter and gave report to the police, which is marked as Ex.P1.

The cross-examination of PW1 shows that she did not specifically state to the police that the incident took place in the 1st floor. It was suggested to her that no such incident took place and that by misconception, they filed false case against the accused. Except the above, nothing was elicited from the cross-examination of PW2.

5.PW4 is the victim, who stated that on 21.6.2014, herself, her aunt and her two daughters, her elder sister and her mother, returned from shopping at 8.50 p.m. Her brother was in the house, when they left. By the time they returned, the house was locked. Usually, they give the keys to watchman, when they go out, hence, while the others are waiting infront of their flat, she went down to bring the keys from the watchman, and after taking the keys, she was coming up, the accused who was standing in the 1st floor, told her that there is a parcel from her father and when she went near the door, he pulled her inside and started abusing her i.e. he started touching her everywhere and started kissing her forcibly. For five to 10 minutes he abused her very badly and when she started shouting loudly, he left her and she rushed to her flat and informed the same to her mother. By the time, her mother and her aunt came down, the accused disappeared.

Later police came to her house and she gave a report to them.

The cross-examination of PW4 shows that she is not acquainted with the accused, earlier to this incident. With regard to her stastement, she stated that she did not write down anything, except Ex.P.1. Police came to their house at about 9.30 p.m., and they did not make any enquiry, after 5 giving Ex.P.1. She admitted that it is not mentioned in Ex.P.1 that they used to keep the key with watchman, whenever they go out and she admitted that she did not state to the police that she was abused for about 10 minutes, but she explained that she was under shock. She also admitted that she did not give any descriptive particulars to the police, and stated that the police did not ask her about the same. She also did not see the accused at any time, after this incident. With regard to the place of incident, she explained that she did not state to the police that the incident occurred in the 1st floor but she stated that it is Flat No.G-4, which is in 1st floor.

6.PW2 is the Watchman, who did not choose to support the case of the prosecution, but he stated that he know PW.1 and LW.1, who are residing in the 2nd floor of the said apartment, but he does not know the accused. About one year back, at about 8.30 p.m, LW.1 came to him and asked for the keys and he gave the keys and left to attend the work entrusted by his owner, who resides in the pent house of the said apartment and returned at 9.30 p.m., by then police were present in their apartment and they noted down his details. He did not see the accused on that day.

7.PW3 is the Inspector of police, WPS Begumpet, who recorded the statement of PW4.

8.PW5 is the witness for the scene of offence panchanama, which is marked as Ex.P3.

9.PW6 is the investigating officer, who registered the case and recorded the statements of PWs 1 and 2 and LW3. He went to the house of the accused on receiving credible information on 22.6.2014 and apprehended 6 him. He recorded the statement of LW.5 and proceeded to the scene of offence and conducted panchanama and prepared rough sketch and filed charge sheet after completing the investigation.

In the cross-examination, he explained that Aasha Residency, which is scene of offence, consists of four floors i.e G+3, and each floor has four flats. He admitted that LW.5 resides in 3rd floor in Flat No.201, while the victim girl resided in 1st floor. He admitted that he did not specifically show in the rough sketch, where PW.1 was residing and he did not show the residents of the ground floor also. He admitted that PW.1 resides in the 1st floor in Flat No.102. The statement of PW4 was not recorded by the

Magistrate and she was not sent for medical examination.

10.The defence counsel mainly harped on the importance of section 27 of the POCSO Act, which prescribes that medical examination of a child shall be conducted and it shall be conducted by woman doctor and that in this case, no medical examination is conducted. But, this court opines that section 27 is not required in this case, as the act of the accused, does not require any medical examination, as there was no sexual intercourse.

11.The other contention is with regard to the name of the accused being mentioned by PW4 in Ex.P1 report. It was argued that there is no evidence as to who supplied the name of the accused to PW4. The evidence shows that the accused goes to a flat in the apartments where PW4 is residing and hence, it would not be difficult for her to collect the name of the accused from the flat owner to where the accused comes. The other contention is with regard to the scene of offence.

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12.The counsel contended that there is ambiguity with regard to the flat and the floor in which the offence occurred. The evidence of PW4 shows that she stated to the police that it is flat no.G-4. The evidence of

PW6 shows that the apartments consisting of G+3 floors, and each floor has four flats which mean that G4 also has flats and it might have been referred as first floor, as would be referred in the ordinary parlance. The defence counsel relied on the rough sketch and contended that it would not be possible for a person at G-4 to view a person coming up the steps. But, such impossibility is not visible in the rough sketch. The steps leading to the first floor and going from the first floor are all possible to the people standing at flat G-4. The watchman though turned hostile, nevertheless stated that

PW4 came and collected the keys from him and that police were present in their apartments by the time he returned at 9.30 pm. Hence, the genesis of the case stands proved by his evidence. No motives were elicited in the cross-examination of PWs 1 and 4 to foist a false case against the accused.

The evidence of PWs 1 and 4 is consistent with each other.

13.The contention of the defence counsel that test identification parade is not conducted is also not merited. PW4 had ample opportunity to look at the accused and the nature of the incident would not allow her to evade his face from her mind. The evidence of PW1 ran on natural lines.

The usual concern with which the mother meets, such instance is reflected in her evidence when she stated that she hugged PW4 and they sat on the stairs when she was shivering and not able to talk. The minor discrepancies if any would not stand against the credibility of the evidence of PWs 1 and 4.

14.The charges framed against the accused are for the offences under sections 342, 354-A IPC and section 8 of POCSO Act. Section 342 8 prescribed punishment for wrongful confinement. The evidence shows that the accused wrongfully confined PW4 for some time. Hence, the said charge stands proved beyond reasonable doubt.

15.Section 354-A of IPC prescribed punishment for a man committing any of the acts elicited thereunder, which include a demand or request for sexual favours, making sexually coloured remarks and physical contact and advances involving unwelcome and explicit sexual overtures.

The evidence of PW4 proves all the 3 acts of the accused.

16.Section 8 of the POCSO Act, prescribes punishment for sexual assault, which is defined under section 7 of the Act, which includes any act done with sexual intents which involves physical conduct. For the offence to be punishable under POCSO Act, the victim should be a child as defined in section 2(d) which any person below the age of 18 years would be a child.

The evidence of Pw1 does not spell the age of PW4. But, she gave her age

as 15 years, while she was deposing before the court though she did not

state about her age when she was giving evidence. The prosecution did not collect any other evidence with regard to the age of the girl. The evidence of

Pw1 shows that Pw4 was studying 9th standard, but by virtue of the said fact alone, it cannot be concluded that PW4 is belong 18 years. The prosecution could have easily secure documents pertaining to the age of PW4 in the circumstances that she is a student, but no effort was made to prove the age of PW4. Hence, the benefit arising out of such lapse for the prosecution has to be extended to the accused. Hence, the offence under section 8 of

POCSO Act, is held as not proved.

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POINT No.2:-

17.In the result, the accused is found not guilty for the offence punishable under section 8 of POCSO Act, and hence he is acquitted under section 235(1) Cr.P.C. But, however he is found guilty for the offences punishable under sections 342 and 354-A IPC and hence he is convicted under section 235(2)Cr.P.C.

Dictated by me, transcribed by Stenographer Gr-I corrected and

pronounced by me in the open court, on this the 11th day of January, 2016.

METROPOLITAN SESSIONS JUDGE,

FAC I ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

18.The accused is appraised of the findings of the court and is questioned on the sentence. He submitted that he is doing a job and he is unmarried and that his future would be spoiled, if he is lodged in jail.

Considering the above submissions and considering the nature of the offence and that it is his first offence, the accused is sentenced to pay a fine of

Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months for the offence punishable under section 342 IPC.

For the offence punishable under section 354-A IPC, the accused is sentenced to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of 6 months. Out of the fine amount,

Rs.5,000/- shall be paid to the victim girl, who is PW4 in this case.

Dictated by me, transcribed by Stenographer Gr-I, corrected and

pronounced by me in the open court, on this the 11th day of January,2016.

METROPOLITAN SESSIONS JUDGE,

FAC I ADDL.METROPOLITAN SESSIONS JUDGE

HYDERABAD.

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APPENDIX OF EVIDENCE

NO. OF WITNESSES EXAMINED ON BEHALF OF

PROSECUTION DEFENCE

PW1 – Smt. Asma Khan, Nil PW2 – Mahipal Reddy, PW3 – Smt. K. Janakamma, PW4 – Kum. Nabeela Hussain, PW5 – Mirza Abdul Hadi Baig, PW6 – D. Nippun, S.I. of Police, The Investigating Officer.

NO. OF EXHIBITS MARKED

Ex.P1 – Report given by PW1. Nil Ex.P2 – 161 Cr.P.C statement of PW2. Ex.P3 – Scene of offence panchanama. Ex.P4 – F.I.R.

NO. OF MATERIAL OBJECTS MARKED

Nil

METROPOLITAN SESSIONS JUDGE

FAC I ADDITIONAL METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

1

IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE,HYDERABAD

Dated this the 16th day of January, 2017

Present: Smt. T.Rajani, Metropolitan Sessions Judge, Hyderabad.

CRIMINAL APPEAL NO.123/2016

From what court this appeal isThe Spl. Judge for Economic Offences, preferred:Hyderabad.

Case Number in that court C.C. No. 17/2015

Criminal Appeal Number Crl. Appeal No. 123/2016

Name and description of the AppellantS. Bethireddy padmanabha Srinivasa Reddy, S/o Late Ganga Reddy, age 47 years, 2-9, Inaparru, Iragavaram, West Godavari District.

Name and description of theThe State through the Superintendent of RespondentCustoms(Prev)CustomHouse, Vishakapatnam.

The law and sentence under whichThe appellant/accused was found guilty for the the Appellant was convictedthe offence 132, 135(1)(a) and 135(1)(b) of

before the lower courtCustoms Act, 1962 and convicted under

section 248(2) Cr.P.C and sentenced to pay a fine of Rs. 10,000/-, in default of payment of fine to undergo simple imprisonment for one month for the offence under section 132 of Customs Act and also sentenced to undergo rigorous imprisonment for a period of six months and also to pay a fine of RS. 10,000/-, in default of payment of fine to undergo simple imprisonment for one month for the offence under section 135(1)(i)(C) of Customs Act. The accused is entitled for set off for the period in judicial remand, if any, duringinvestigationundersection 428 Cr.P.C.

Whether confirmed, modified orIn the result, the appeal is partly allowed. reversed and if modified, theThe judgment of the trial court in C.C. No. modification 17/2015, dt 22.1.2016, is hereby confirmed. But, however, considering that the accused is not proved to be the person smuggling the gold and that he was aiding some one else, the sentence of imprisonment is reduced to 3 months from that of 6 months for the offence punishable under section 135(1)(i)(C) of Customs Act, by keeping the fine amount awarded under sections 132 and 135(1)(i)

(c) of Customs Act. DATE or ON WHICH Presentation10-2-2016 Filing10-2-2016 Notice issued to Respondent to 10-2-2016 appear Whether on bail, if so, the bail bond-- Respondent ordered to appear 29-2-2016 Hearing 21-12-2016 Judgment16-1-2017

This Criminal Appeal is coming on for hearing before me upon perusing the grounds of appeal and record of evidence and upon considering the arguments of M/S D. Pandu Ranga, Advocates for the appellant and of Sri P. Dharmesh, Special Public Prosecutor for the Customs and Central Excise/State, this court made the following:

J U D G M E N T

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1.This appeal is preferred against the judgment of Special Judge for

Economic Offences-cum-VIII Addl. Metropolitan Sessions Judge, Hyderabad, in

C.C.No.17/2016, dt:2.8.2016, by virtue of which the Special Judge found the accused guilty for the offence punishable under sections 135(1)(i)(c) and 132 of

Customs Act and sentenced him to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of one month for the offence punishable under section 132 of Customs Act and also sentenced to rigorous imprisonment for a period of six months and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of one month for the offence punishable under section 135(1)(i)(C) of Customs Act.

2.The facts of the case briefly as per the complaint are as follows:-

Specific intelligence that the accused was arriving in

Vishakapatnam by a flight from Dubai to Vishakpatnam via Hyderabad along with concealed contraband goods in his luggage was received, on which the officers of Air Intelligence Unit of Customs, kept vigil and intercepted the accused at the

Customs exit gate. The accused travelled from Hyderabad to Vishakapatnam as a domestic passenger. The accused was questioned as to whether he was carrying any contraband goods, on which he replied in negative. Thereafter, the baggage of the accused was examined in the presence of two panch witnesses, but no contraband was found in the luggage. Thereafter, the officers, relying on the specific information, took him inside the search room at the Airport for personal search and scanned by hand held metal detector, in the presence of two panch witnesses and Superintendent of Customs. When the metal detector was placed close to his pant pockets, there was an alarm, which indicated the presence of metallic item. On thorough search, 12 metal bars, which appeared to be gold, were recovered from the inner pockets of the pant worn by the accused.

On that, the accused was questioned whether he got any other contraband goods in his possession, other than the recovered 12 gold bars, and he replied in the negative.

The accused was travelling as domestic passenger. The customs declaration form which was submitted by him at Hyderabad Airport was verified.

He did not declare any gold items in his possession. He confessed that at

Hyderabad Airport, he did not declare any gold in his possession at that time.

As such, 12 gold bars were recovered from the accused and examined by the 3 Government approved valuer. The total weight of 12 gold bars were 1299,680 grams valued at Rs.39,39,000/-. They were seized by the Customs Officer under a panchanama.

The statement of the accused was recorded on 27.8.2014, wherein he stated that after boarding from Air India flight at Hyderabad, he was handed over 12 gold bars by one co-passenger and asked him to wait for him outside the

Vishakapatnam Airport and that the said co-passenger would come and collect 12 gold bars from him and that he did not know the said co-passenger and other details of the said co-passenger and that he was threatened to carry gold fro him.

A show cause notice was issued and the gold was confiscated.

Responding to show cause notice, the accused neither appeared nor placed any written submission. As such adjudication proceedings were taken up exparte based on the material available on record. The Joint Commissioner of Customs,

Vishakapatnam through proceedings dt:30.1.2015 issued confiscation order for the gold.

3.The trial court took cognizance of the case for the offence under sections 132 and 135(1)(i) of Customs Act against the accused, and after the accused appeared before it, complied with all the required legal formalities and framed a charge under sections 232 and 135(1)(i)(C) of Customs Act. The accused pleaded not guilty and claimed to be tried. On that, the trial of the case was conducted, in the course of which PWs 1 to 6 were examined and Exs.P1 to

P13 marked. After concluding the prosecution evidence, the accused was questioned about the incriminating circumstances appearing in the evidence, when he was examined under section 313 CrPC. He denied the same and examined Dws 1 and 2 on his behalf. Based on the evidence, the lower court passed the impugned judgment by convicting the accused.

4.Against the said judgment, this appeal is preferred on the grounds that the lower court ought to have considered that at Hyderabad a declaration form will be given to the domestic passengers to declare dutiable goods if any and it will be in Hindi/English language. It ought to have considered that the statement of the accused, scribed in Telugu, by one of the officers of the Customs

I.e, PW6, wherein it was stated that one co-passenger handed over the said 12 gold biscuits with an instruction to wait for him outside the airport. The trial court 4 ought to have considered the reason given by the appellant I.e, as he was not in possession of any gold biscuit when he was boarded the flight at Hyderabad, and brushed aside the same. The trial court did not consider the evidence in cross- examination of PW3. The trial court should have considered the contradiction between the evidence extracted from the accused by PW3 and the statement of the appellant. The trial court further overlooked, as stated by the appellant, in its statement, that 12 gold biscuits does not belong to him and he is not the owner of the same. It should have accepted and acquitted the appellant. The trial court ought to have considered the chief and cross-examination of PW3 and in the chief-examination he stated that he examined the accused with metal detector and in the cross-examination he stated that he does not know whether the accused was searched with metal detector or not. Based on the above grounds, the appellant sought for setting aside the judgment of the lower court.

5.Now, the points that arise for determination before this court are:- 1)Whether the judgment of the lower court is sustainable.

2)To what relief.

6.For the sake of convenience, the parties would be referred to as arrayed in the lower court.

POINT NO.1:-

7.The appellant filed written arguments contending that the petitioner did not have gold in his possession, when he boarded the flight at Hyderabad.

Hence, it proves that the accused did not have gold at the time of boarding the flight at Hyderabad and hence question of declaration does not arise and the

Customs declaration has to be filed only at the time of boarding the flight. Hence, he did not declare in the declaration form. It is submitted that the accused was innocent and did not commit any offence and as such, shall be considered as special and adequate reasons for awarding the sentence.

8.The accused from the beginning has been taking a plea that one of his co-passengers handed over the gold to him to be handed over to a person in turn outside the airport of Vishakapatnam. The statement of the accused is also to the same effect.

9.PW3 is the person, who checked the accused. When he enquired 5 with the accused whether he was carrying any dutiable item, he replied ‘no’. He specifically questioned the accused whether he is carrying any gold, to which also he replied in the negative. He was carrying one small bag, which did not contain any dutiable items. On checking his person, he found metal items on the right side of waist portion inside of his pant, in which 6 gold biscuits were found.

Another six gold biscuits were also found in his left side inner pocket of pant.

The accused stated that some one handed over the 12 gold biscuits, while passing through Airway Bridge after getting down the flight at Vishakapatnam.

When he was questioned, whether he can identify the person, he said that he cannot identify him. When he was asked as to whom he is going to deliver that gold, he replied that after going out of the airport, some person will come and take over the same by paying money to him. A perusal of the statement of the accused also shows the same. The fact that the person receiving the gold would pay some money to the accused, would show that he was conspired with the alleged co-passenger to carry the gold and transport it to outside the airport clandestinely.

10.The observation of the lower court with regard to the mensrea of the accused, that if he did not have any knowledge that he should not carry the gold, he could not have hidden the same in his inner pockets, is based on proper appreciation of the human. Even if it is accepted that the accused did not carry the gold from Hyderabad and that hence he did not declare it, he had the necessity to declare it when he was questioned by the Customs officials. But, his effort to avoid the detection of gold by answering in the negative when he was questioned about it, would show that he gave a mis-disclaration about the things that he was carrying with him. The small variations with regard to the language in which the statement of the accused is recorded need not be considered as effecting the case of the prosecution, as the original statement recorded in Telugu and the translated statement in English are both found in the record and hence the evidence of the panch witness that the statement was recorded in English can be understood. His statement was recorded on the spot itself. The officials however had an opportunity to further investigate the matter, by trying to trace out the person by laying a check outside the airport and wait for the person who was placed to collect the gold from the accused. But, however, that would be 6 helping the investigation only in tracing out the person, who handed over gold to the accused. Irrespective of tracing out of the said person, the carrying of gold by the accused, by itself, would amount to an offence under sections 132 and 135 of

Customs Act, as he was helping that person in evading the Customs duty. It is not a big luggage which could not have been carried by the person who gave it to him. Moreover he did the act expecting some gain. No one would offer money for carrying gold, unless it is for some secret purpose. The conduct of the accused clearly proves that he was aware that he was committing an offence.

11.Hence, this court opines that the judgment of the lower court, so far as the conviction is concerned needs no interference. But, however, considering that the accused is an agriculturist and considering that his statement that some one asked him to transport the gold, this court is inclined to reduce the sentence of imprisonment to 3 months from that of 6 months for the offence punishable under section 135(1)(i)(C) of Customs Act, by keeping the fine amount awarded under section 132 and 135(1)(i)(C) of Customs Act.

POINT NO.3:-

12.In the result, the appeal is partly allowed. The judgment of the trial court in C.C.No.17/2015, dt:22.1.2016, is here by confirmed. But, however, considering that the accused is not proved to be the person smuggling the gold and that he was aiding some one else, the sentence of imprisonment is reduced to 3 months from that of 6 months for the offence punishable under section 135(1)(i)(C) of Customs Act, by keeping the fine amount awarded under sections 132 and 135(1)(i)(c) of Customs Act.

Dictated by me, transcribed by Stenographer Gr-I, corrected and

pronounced by me in the open court, on this the 16th day of January,2016.

METROPOLITAN SESSIONS JUDGE

HYDERABAD.

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IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE-CUM-

SPECIAL JUDGE FOR TRIAL OF CASES UNDER PROTECTION OF CHIL-

DREN FROM SEXUAL OFFENCES ACT, 2012, HYDERABAD.

Dated this the 18th day of January, 2016

PRESENT : SMT. T. RAJANI,

METROPOLITAN SESSIONS JUDGE,

FAC I ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

SESSIONS CASE PCS NO.2/2015

Crime Number and Police StationCrime No.244/2013 of PS Falaknuma, Hyderabad. Name and description of the accused Feroz Kamiz, S/o. Late Kamiz Dawood, personAged 33 years, Occ: Beggar, R/o. Plot No.122, Sy.No.25, Nawab Sab Kunta, Behind S.K. Gardens, Hyderabad. Prosecution conducted bySri K. Pratap Reddy,

Additional Public Prosecutor.

Accused defended bySri. D. Raji Reddy, counsel. Offences chargedUnder Sections 366-A and 376 of IPC and Section 6 of The Protection of Children from Sexual Offences Act, 2012. Plea of the accusedPleaded not guilty. Finding of the CourtFound not guilty. RESULTIn the result, the accused is found not guilty for the offences punishable under Sections 366-A and 376 of IPC and Section 6 of The Protection of Children from Sexual Offences Act, 2012 and hence he is acquitted under Section 235(1) of Cr.P.C. The MOs 1 to 5 and 6 shall be destroyed and MO.4 shall be returned to the accused, after expiry of appeal time.

:: J U D G M E N T ::

1.Briefly the facts of the case as per the charge sheet filed by the

Inspector of Police, Falaknuma PS are as follows:-

On 04-11-2013 at 20.30 hours the complainant gave a report to the police stating that on 03-11-2013 at about 4.00 p.m. her daughter left the house and has not returned home and they searched for her in the nearby places and informed to relatives about her missing daughter. On 04-11-2013 at about 20.00 hours her daughter came to home along with the accused and they 2 came to know that on 03-11-2013 her daughter was called by the accused to

Nagulabanda and from there he took her in an auto to Ashmabad,

Chandrayanagutta, to his mother’s house. There he promised to marry her and committed sexual intercourse without her consent. Based on the said report, a case was registered in Cr.No.244/2013 for the offence under Sections 363, 376(2)(i) of IPC, Criminal Law Amendment Act, 2013 and Section 4 of the

Protection of Children from Sexual Offences Act, 2012 and investigation was taken up.

During investigation, the investigation officer recorded the statements of the complainant and the victim. The victim girl was sent to the hospital for medical examination and her clothes were sent to FSL for analysis and report. The victim was also sent to OGH for age determination. The accused was arrested on 06-11-2013 and was sent to Osmania Medical College for conducting potency test and later produced before the court for judicial remand. After collecting necessary documents and after concluding the investigation, the investigating officer filed charge sheet against the accused for the same offences.

2.This court took cognizance of the case and on appearance of the accused, complied with all the required legal formalities. Based on the prima facie material, charges for the offences punishable under Sections 366-A, 376 of

IPC and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 were framed against the accused. After recording the plea of not guilty by the accused, case was tried, during the course of which, PWs 1 to 12 were examined and Exs.P1 to P9 and MOs 1 to 6 are marked on behalf of the prosecution. After concluding the prosecution evidence, the accused was questioned about the incriminating circumstances appearing in the prosecution 3 evidence. He denied the same and reported no evidence on his behalf.

3.Now the points that arise for determination by this court are:-

1) Whether the evidence of the witnesses proves the guilt of the accused beyond all reasonable doubt for the offences with which he is charged.

2) To what result.

POINT NO.1:-

4.PWs 1 and 2 are the only witnesses who spoke about the complicity of the accused. PW1 is the mother of the victim and PW2 is the victim.

According to the evidence of PW1, who is the complainant, their family is living on begging and the accused is also a beggar. She sent PW2 also for begging for one month during the period of Ramzan. On 03-11-2013, accused took away

PW2 and brought her back on the next day, stating that he took her. When she beat PW2 and asked, she informed that accused took her to his house and committed rape on several occasions. Then she gave report to the police.

In the cross-examination, she could not tell the date of birth of

PW2. She stated that the accused and PW2 were moving together since long time, but they restricted them. It was suggested to her that they were moving together and that she was not willing for the marriage between the accused and

PW2 and hence, she filed a false report.

5.PW2, who is the victim stated that she knows the accused. She met him on the road while she was begging. About two years back, accused took her to his mother’s house at Engine Bowli, saying that he would marry her.

The accused is already married. When she was taken to his house, his wife and mother beat her and later brought her and left her at her house. The accused had sexual intercourse with her during that period. Later after her return, she 4 went to PS.

In the cross-examination, she admitted that she was in love with the accused and they used to move together. The accused used to give maintenance, auto charges, to her and also asked her not to go for begging.

She visited the house of the accused previously also and she was aware of the marriage of the accused and about his having children. The doctor examined her for age determination and opined that she was about 18 years. She admitted that accused is a handicapped person and cannot move without support and the same is observed by the court and it is observed that accused is not able to sit on the bench in the accused dock. She admitted that unless she goes along with the accused, he cannot take her forcibly, due to his handicap.

She admitted that she did not come home for two days and PW1 got worried and gave a report and she gave her statement, stating all these facts. An omission was pointed out , that the accused took her to his house and his wife and mother beat her, but she stated that they quarreled with her.

From the evidence of PW2 it can be understood that she was in love with the accused and that she herself went along with the accused as she admitted that the accused who is handicapped cannot forcibly take her away. In the chief-examination, she stated that when she was taken to his house, the wife and mother of the accused beat her. She did not clearly state as to the possibility of the accused having sexual intercourse with her in the said circumstances.

With regard to the age of PW2, PW8 who is the doctor, who examined her stated that PW2 was aged about 17-18 years. She issued a certificate which is marked as Ex.P7. Hence, from the evidence of PW8, it can be understood that

PW2 is aged between 17 or 18 years. In the cross-examination, the doctor 5 stated that the age determination is prone to an error of + or – one year.

Hence, by virtue of the said error, PW2 can be considered as aged 19 years, as the benefit of said error has to be given to the accused. In such circumstances, only if the sexual intercourse between PW2 and the accused is against her consent, the accused would be liable for punishment. But, the evidence of PW2 is not at all trustworthy as she is well aware of the earlier marriage of the accused and she stated that she was in love with the accused. Hence, any amount of consent can be inferred from the said fact. Hence, in view of the above, the evidence of PW5 that the vagina of victim was admitting two fingers, which proves sexual intercourse, does not become a fact which would make the accused liable for punishment. Hence, in view of the above, this court opines that prosecution failed to prove the guilt of the accused.

POINT No.2:-

6.In the result, the accused is found not guilty for the offences punishable under Sections 366-A and 376 of IPC and under Section 6 of

Protection of Children from Sexual Offences Act, and hence he is acquitted under Section 235(1) of Cr.P.C. The MOs 1 to 5 and 6 shall be destroyed and

MO.4 shall be returned to the accused, after the expiry of appeal period.

Dictated by me, transcribed by Stenographer Gr-I, corrected and

pronounced by me in the open court, on this the 18th day of January, 2016.

METROPOLITAN SESSIONS JUDGE,

FAC I ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

6

NO. OF WITNESSES EXAMINED ON BEHALF OF

PROSECUTION DEFENCE

PW1 – Smt Rehan Begum, the complainant. Nil PW2 – Kum. Irfana Begum, the victim girl. PW3 – Shaik Abdul Jabbarf, PW4 – Shaik Habeeb, PW5 – Dr. D. Anupama, PW6 – Dr. M. Taqiuddin Khan, PW7 – Smt Vijayakumari, PW8 – Dr. M. Sugatha, PW9 – B. Satyanarayana, S.I of Police, PW10- M. Hussaini Naidu, Inspector of Police. PW11- Hussain, PW12- Mohd. Shakir Hussain, Inspector of Police,

NO. OF EXHIBITS MARKED

Ex.P1 – Report given by PW1. Nil Ex.P2 – Scene of offence panchanama along with Rough sketch of the scene. Ex.P3 – Admissible portion in the confessional Statement of the accused. Ex.P4 – Medical Report issued by PW5. Ex.P5 – Final Opinion issued by PW5. Ex.P6 – Potency Test Certificate, Ex.P7 – Age Certificate of PW2. Ex.P8 – F.I.R. Ex.P9 – FSL Report.

NO. OF MATERIAL OBJECTS MARKED

MO.1 – Bed sheet. MO.2 – Chunni. MO.3 – T-Shirt. MO.4 – Cell phone. MO.5 – Pant. MO.6 – Underwear.

METROPOLITAN SESSIONS JUDGE

FAC I ADDITIONAL METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

1

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS JUDGE AT

HYDERABAD.

Dated this the 13th day of January, 2016

PRESENT : SMT. T. RAJANI,

METROPOLITAN SESSIONS JUDGE,

FAC I ADDL. METROPOLITAN SESSIONS

JUDGE, HYDERABAD.

SESSIONS CASE NO.266/2013

Crime Number and Police StationCrime No.333/2012 of PS Chandrayangutta, Hyderabad.

Name and description of the accused A2. Sardar Ratan Singh @ Reetu, personS/o. Late S. Chatar Singh, Aged 23 years, Occ: Auto Driver, R/o. H.No.4-9-278/1, Behind Guru Nanak School, Sikh Chawni, Kishanbagh, Hyderabad.

A3. Sardar Maninder Singh @ Sunny, S/o. Sardar Nanak Singh, Aged 20 years, Occ: Pvt. Employee, R/o. H.No.4-9-146/RC, Behind Khalsa Kirana & General Stores, Sikh Chawni, Kishanbagh, Hyderabad.

Prosecution conducted bySri K. Pratap Reddy,

Additional Public Prosecutor.

Accused defended bySri. Mohd. Muzaffer Ullah Khan, counsel.

Offences chargedUnder Section 307 r/w 34 of IPC.

Plea of the accusedPleaded not guilty. Finding of the CourtFound not guilty. RESULTIn the result, the accused 2 and 3 are found not guilty for the offence punishable under Section 307 IPC r/w 34 of IPC and hence they are acquitted under Section 235(1) of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

:: J U D G M E N T ::

1.Briefly the facts of the case as per the charge sheet filed by the

Inspector of Police, PS Chandrayangutta are as follows:- 2

On 25-102012, at about 11.45 p.m. LW9, Mohd. Saleem, ASI of

Police, returned to PS from Apollo DRDO Hospital, Kanchanbagh, Hyderabad, after recording the statement of the injured LW1, Syed Aleemullah, wherein the injured stated that on 25-10-2012, in the night while he was returning to his house at Phoolbagh from Chatrinaka, on the way at about 10.20 p.m.

while he was passing near Hindu graveyard at Nallavagu, he noticed some unknown Sikh persons quarreling with each other and while he was passing by them, all of a sudden two sikh persons among them attacked him with a sword, but luckily he raised his hand in order to shield himself, resulting which he sustained bleeding injury over his left hand wrist. Immediately he ran away from there to some distance, where he found his friend Hussain near Lucky Star Hotel, who took him to PS Chandrayuantta, from where he was shifted to Apollo DRDO Hospital for treatment. Based on the said statement, a case was registered in Cr.No.333/2012 under Section 307 r/w 34 of IPC and Section 27 of Arms Act.

During investigation, the investigation officer visited the Apollo

DRDO Hospital, Kanchanbagh and recorded the detailed statement of the injured, visited the scene of offence and caused enquiries, effected the arrest on the accused on 30-10-2012, and after concluding the investigation, filed charge sheet against the accused for the same offences.

2.This court took cognizance of the case and on appearance of the accused 2 and 3, complied with all the required legal formalities. Based on the prima facie material, a charge for the offence punishable under Section 307 r/w 34 of IPC was framed against the accused. After recording the plea of not guilty by the accused, case was tried, during the course of which, PWs 1 to 6 were examined and Exs.P1 to P5 marked on behalf of the prosecution.

After concluding the prosecution evidence, the accused 2 and 3 were questioned about the incriminating circumstances appearing in the 3 prosecution evidence. They denied the same and reported no defence evidence on their behalf and no documents were got marked on their behalf.

3.Now the points that arise for determination by this court are:-

1) Whether the guilt of the accused is proved beyond all reasonable doubt for the offence with which they are charged is proved.

2) To what result.

POINT NO.1:-

4.PW1 is the injured. According to his evidence, on 25-10-2012 at about 10.20 p.m. he was going to his house at Poolbagh from Chatrinaka and when he reached near graveyard, Poolbagh, about 8 to 10 persons were quarreling and out of them, two persons came and started beating him and when they tried to attack on his neck with a knife, he tried to ward of the blow and in that process, he sustained injury on his left wrist and he ran away. His friend, Mohd. Hussain who was near Lucky Star Hotel, took him to the police station on his motorcycle and from there he was taken to DRDO

Apollo Hospital and from there he was shifted to Care Hospital. He identified the accused as the culprits.

In the cross-examination, he stated that he does not have prior acquaintance with the accused and he did not mention in PW1 that he can identify the culprits. He did not give the descriptive particulars of the accused to the police. In the further cross-examination on his recalling, he stated that no test identification parade was conducted for the identification of the culprits and his name is not mentioned underneath the thumb impression in Ex.P1 and it is not mentioned as to which hand it pertains to.

5.PW2 is the hostile witness. But, he stated that he met PW1 on 4 the date of incident at about 10.30 p.m. after closing his hotel and while he was going to his house. He met PW1 with bleeding injury on his hand. Then he took him to police station and then he left. He further stated that PW1 did not tell him as to how he sustained injuries.

6.PW3 is the witness who supported the version of PW1 with regard to the attack. According to his evidence, on the date of incident, while he was returning home from his tuition, on the way, near a graveyard, he saw three persons standing near a motorbike, who were fully drunk.

There was quarrel and some people gathered there, by then. One person called his friend. After that four motor bikes carrying two persons each, came there. A person who was travelling as pillion rider on one of the said motorbikes, took out talwar and was waving the same and all the people ran away. PW1 was also present at the spot. Four persons gave punches on the face and body of PW1. He identified A2 as one of the said four persons. A3 was also present. One person caught hold his hands at the back, who was wearing a mask on his face. One person was shouting as Satbeer Chalo

Kishanbagh Jayenge. Then, he ran away to his house while PW1 fell down.

In the cross-examination, he stated that he did not have prior acquaintance with the accused and he did not state to the police that he can identify the culprits. An omission with regard to his returning from tuition and seeing three persons fully drunk, standing near bike near graveyard and four bikes carrying two persons coming there and one person telephoning to his friend and one person travelling as pillion rider on one of the bikes, taking out a talwar and waving and all the people running away and A2 giving punches on the face of PW1 and himself and PW1 falling down and one person catching his hands at the back was wearing a mask on his face were all pointed out as omissions.

5

7.PW4 is the doctor, who examined PW1 and found a cut injury on the left wrist. He issued Ex.P3 certificate.

8.PW5 is the Investigating Officer, who filed the charge sheet after concluding the investigation.

9.PW6 is the S.I of Police, PS Chandrayangutta, who registered the case. In the cross-examination of PW6, he admitted that the date mentioned underneath the signature is 26-10-2012. But, he explained that he made the signature on the next day, while dispatching the FIR to the court. There need not be any reason to doubt the explanation given by PW6.

10.The attack with knife is not stated by PW2. The evidence of PW5 shows that no test identification parade was conducted. Though the omissions pointed out to the witnesses were proved through PW5, the material evidence that remained before the court is only of PWs 2 and 3.

The incident occurred at 10.20 p.m. at which time no presence of light can be assumed. Unless the witnesses can explain the source of light with the help of which they could identify the culprits, the identification may by them stands on doubtful pedestal. Admittedly, the accused are strangers to PWs 2 and 3. No motive is stated for the attack made on PW1. Hence, in such circumstances, the prosecution is burdened with the duty to explain as to how PWs 1 and 3 could identify the culprits. Admittedly no test identification parade is conducted. Even if the test identification parade was conducted and the accused were identified, unless the source of light is explained, the identification made by them before the test identification parade would also be doubtful. Hence, the said benefit of doubt accrues to the accused.

POINT No.2:- 6

11.In the result, the accused 2 and 3 are found not guilty for the offence punishable under Section 307 IPC r/w 34 of IPC and hence they are acquitted under Section 235(1) of Cr.P.C. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Dictated by me, transcribed by Stenographer Gr-I, corrected

and pronounced by me in the open court, on this the 13th day of January, 2016.

METROPOLITAN SESSIONS JUDGE

FAC I ADDITIONAL METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

NO. OF WITNESSES EXAMINED ON BEHALF OF

PROSECUTION DEFENCE

PW1 – Syed Aleemullah, Nil PW2 – Mohd. Hussain, PW3 – Syed. PW4 – Dr. Ravi Chander Rao, PW5 – A. Srinivasa Rao, PW6 – N. Karuna Kumar,

NO. OF EXHIBITS MARKED

Ex.P1 – Statement of PW1. Nil Ex.P2 – 161 Cr.P.C statement of PW2. Ex.P3 – Injury certificate. Ex.P4 – Section Alteration Memo. Ex.P5 – F.I.R.

NO. OF MATERIAL OBJECTS MARKED

Nil

METROPOLITAN SESSIONS JUDGE

FAC I ADDITIONAL METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

1

IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE,HYDERABAD

Dated this the 10th day of January,2017

Present: Smt. T.Rajani, Metropolitan Sessions Judge, Hyderabad.

CRIMINAL APPEAL NO. 1025/2016

From what court this appeal is preferred:The IV Addl. Chief Metropolitan Magistrate, Hyderabad.

Case Number in that court C.C. No. 518/2016

Criminal Appeal Number Crl. Appeal No. 1025/2016

Name and description of the Appellant Sadaq Qammar Irani, S/o Qammar Irani, age 21 years, Occ : Labour, R/o Opp : Dinyad Masjid, Street no. 875, Shanti Nagar, Irani Pahada, Near Saluddin Ayubi School, Bhiwandi, Thane District, Maharashtra State.

Name and description of the RespondentThe State through Sub­Inspector of Police,P.S. Kachiguda, Hyderabad.

The law and sentence under which the the The appellant/accused was found guilty for Appellant was convicted before the lower courtthe offence U/Sec 382 IPC and he is convicted U/Sec 248(2) Cr.P.C. and sentenced to suffer a Rigorous Imprisonment for a period of (2) years, and to pay a fine of Rs. 100/­ in default of payment of fine, to suffer Simple Imprisonment for a period of one month which shall be in addition to the Principal sentence. The remand period of the accused from 5­1­2016 till date i.e., 17­10­2016 shall be given set off U/Sec 428 Cr.P.C. The conviction and sentence passed against the accused in this case shall run concurrently with the sentence imposed in C.C. No. 537/2016, 408/2016, 751/2016. The M.O.1 i.e, Gold Mangalasutram Chain in P.I. No. 84/2016 is already returned to PW.1 for interim custody vide orders dt : 4.3.2016 and the said orders shall be absolute after expiry of appeal time. 

Whether confirmed, modified or reversed and ifIn the result, the appeal is allowed. The modified, the modification judgment of the lower court in C.C. No. 518/2016, dt : 17­10­2016 is hereby set aside. The amount if any paid by the accused shall be returned to him. DATE or ON WHICH Presentation23­11­2016 Filing23­11­2016 Notice issued to Respondent to appear 23­11­2016 Whether on bail, if so, the bail bond­­ Respondent ordered to appear 9­12­2016 Hearing 9­1­2017 Judgment10­1­2017

This Criminal Appeal is coming on for hearing before me upon perusing the grounds of appeal and record of evidence and upon considering the arguments of Sri V. Srinivasa Rao, Advocate for the appellant and of Smt K.V. Rajani, Addl. Public Prosecutor of III Addl. MSJ, Hyderabad, FAC Public Prosecutor of this court, for the State, this court made the following:

2

 J U D G M E N T

1.This appeal is preferred against the judgment of the IV Addl. Chief

Metropolitan Magistrate, Hyderabad, in C.C.No.518/2016, dt:17.10.2016, by virtue of which the lower court convicted the appellant for the offence under section 382 IPC and sentenced him to undergo rigorous imprisonment for a period of two years and also to pay a fine of Rs.100/- and in default of payment of fine to undergo simple imprisonment for a period of one month.

2.The facts of the case briefly as per the charge sheet are as follows:-

On 27.7.2015 at 1700 hours, the complainant gave a report stating that she is working in Care Model School and on that day at 3.55 pm, while she was returning home and when she reached the corner at Uday Nagar Society, some unknown persons came on a Pulsar motorbike and snatched away her gold mangalasutram chain weighing about 4 tolas and fled away. Based on the said complaint, a case was registered in Cr.No.208/2015 for the offence under section 382 IPC. After completion of investigation, the investigating officer filed charge sheet against the accused for the same offence.

3.The trial court took cognizance of the case for the offences under section 382 IPC and after the accused appeared before it, complied with all the required legal formalities and framed a charge for the offence punishable under section 382 IPC. The accused pleaded not guilty and claimed to be tried. On that, the trial of the case was conducted, in the course of which PWs 1 to 7 were examined and Exs.P1 to P7 and MO1 were marked. After concluding the prosecution evidence, the accused was questioned about the incriminating circumstances appearing in the evidence, when he was examined under section 313 CrPC. He denied the same and reported no evidence on his behalf. Based on the evidence and the material on record, the lower court passed the impugned judgment.

4.Against the said judgment, this appeal is preferred on the following and others grounds that were urged at the time of hearing. The lower court failed to observe and examine critically the entire evidence and exhibits on record. It failed to observe the place of offence is a public road where number of witnesses would be present, but none of them were examined. The lower court failed to 3 observe that the offender came on a Pulsar motorbike and snatched away her chain and fled away, then the identification is not possible. The lower court failed to appreciate that the complainant was shown the photos of the appellant prior to the identification parade. The lower court failed to appreciate that the offence occurred on 27.7.2015 and the accused was arrested on 24.12.2015. No offender would preserve the theft property for such a long time. Based on the above grounds, the appellants sought for setting aside the judgment of the lower court.

5.Now, the points that arise for determination before this court are:- 1)Whether the judgment of the lower court is sustainable. 2)To what relief.

6.For the sake of convenience, the parties would be referred to as arrayed in the lower court.

POINT NO.1:-

7.PW1 stated that on 27.7.2015, at 3.40 pm, while she was crossing the lane of her school at 6 number, two unknown persons came in opposite direction and the pillion rider snatched away her gold mangalasutram. Though the other persons witnessing the incident chased the culprits, there was no use.

Immediately, she gave a report to the police. After few months, police informed her about the recovery of stolen articles and she took interim custody of the same. She was taken to Chanchalguda Jail and there she identified the accused in the test identification parade.

8.The magistrate who conducted the test identification parade was examined as PW4. There is no irregularity in the test identification parade.

9.But, a perusal of the proceedings would show that the complainant gave the descriptive particulars of the accused, which she failed to give to the police, when she lodged the complaint. She clearly stated before the Magistrate that the culprit is fair in colour of young age about 25 years and that he wore white shirt. A perusal of the report shows that she did not mention any of the above aspects therein, except stating that she can recognize them, if she sees them. The offence occurred on 27.7.2015 and the identification parade was 4 conducted on 6.2.2016. Moreover, the accused was going as a pillion rider and in the cross-examination she stated that the incident took place within few seconds. Hence, the possibility of PW1 looking at the culprits and identifying the accused in the test identification parade is very bleak. Hence, this court opines that the identification done by PW1 does not inspire confidence.

10.Even if identification is not proved, if the recovery from the accused is proved beyond reasonable doubt, he can be found guilty for being in possession of the stolen property. The recovery aspect is spoken to by PW3. He stated that the accused was present in the police station, when he went there and he enquired with him and the accused confessed about committing chain snatching offences at various places and gold mangalasutram and 4 gold chains were seized from the accused. But, unfortunately, MO1 was not confronted to

PW3. PW5 also spoke about the confession and recovery. But, he also did not speak about MO1. PW7 is another panch witness. But, he was also not confronted with MO1.

11.Hence, there is absolutely no evidence fixing the nexus between

MO1 and the accused and the identification is found to be doubtful. Hence, in the above circumstances, the judgment of the lower court cannot be sustained.

POINT NO.2:-

12.In the result, the appeal is allowed. The judgment of the lower court in C.C.No.518/2016, dt:17.10.2016, is hereby set aside. The fine amount if any paid by the accused shall be returned to him.

Dictated by me, transcribed by Stenographer Gr-I, corrected and

pronounced by me in the open court, on this the 10th day of January,2017.

METROPOLITAN SESSIONS JUDGE

HYDERABAD.