IN THE COURT OF THE SESSIONS JUDGE, AT NIZAMABAD
PRESENT: Sri V.Ravi Kumar, B.Sc., LL.M.
Sessions Judge, Nizamabad.
Tuesday the 26th day of February, 2013
CRL.Appeal No. 74 of 2012
1 From what Court the : The Judicial Magistrate of First Class, Armoor Appeal is preferred 2 Number of the case : CC No. 1036 of 2008 in that Court 3 Number of Appeal : CRL.Appeal No.74 of 2012 4 i) Name of the : 1 Shaik Khasim s/o Yosob @ Yousuf, age: 22 appellant/s years, occ: Agril. R/o Rented house No. 399, Judgus Colony, Chinthal Kunta, Rangareddy, Hyderabad, N/o Kothur village of Ashwaraopet Mandal, Kammam Dist.
2 Shaik Syed @ Saidulu s/o Madarsab, age: 21 years, R/o Rented House in Plot No. 399,
Judges Colony, Chinthal Kunta, Rangareddy,
Hyderabad, N/o Yadvalli village of Nuthankal Mandal, of Nalgonda Dist.
3 Gandam Ravi s/o Pandari, age: 25 years, occ: Labour, r/o Jalalpoor village of Nizamabad Mandal, Nizamabad Dist. Present R/o Rented house at H.No. 10-14-16/2, Brahmangally, Seetharam Nagar Colony, Nizamabad Dist.
4 Vennolla Naresh s/o Ramulu, age: 23 years, occ: Labour, R/o Rented House No. 10-9- 292, Anandnagar, Seetharam Nagar Colony, Nizamabad.
ii) Name of the : The State represented by the Inspector of respondents Police, P.S. Armoor 5 Sentence and law : The learned Judicial Magistrate of First Class, Armoor found the appellants guilty for the offence U/sec. 394 under which it was IPC and convicted them U/sec. 248(2) Cr.P.C. and passed sentenced them to undergo Rigorous Imprisonment for a period of Two years and to pay fine of Rs.500/- each. In default of payment of fine, the appellants shall suffer simple imprisonment for a period of one month each.
The JFCM Armoor further found the appellants/A3 and A4 guilty for the offence U/sec. 201 IPC and convicted them U/sec. 248(2) Cr.P.C. and sentenced them to undergo Rigorous Imprisonment for a period of ONE year and to pay fine of Rs.500/- each. In default of payment of fine, they shall suffer simple imprisonment for a period of one month each and both the sentences shall concurrently.
The appellants are given the benefit of Sec. 428 Cr.P.C. 6 Whether confirmed, : Confirmed modified or reversed 2 Crl.A. No. 74/2012
This case coming before me for final hearing and disposal in the presence of Sri G.V.Krupakar Reddy, Advocate for the appellants/accused and of Public Prosecutor for the Respondent/State having heard and having stood over for consideration, this Court delivered the following:
JUDGMENT
1. This appeal is filed against the judgment and sentence passed in CC No. 1036 of 2008 dated 20th September, 2012 on the file of the Judicial Magistrate of First Class, Armoor convicting the appellants/A1 to A4 for the offence punishable U/Sec. 394 IPC and sentenced them to undergo Rigorous Imprisonment for a period of two years and to pay fine of Rs.500/-. And rigorous imprisonment of one year and fine of Rs.500/- for the offence punishable U/Sec. 201
IPC against A3 and A4 and both the sentences shall concurrently.
2. The facts of this appeal are as follows:
The C.I. of Police, Armoor filed charge sheet against the appellants stating that on 31.8.2008 at 10.00 P.M. the complainant
Gandham Budhiraju (Pw1) came to the Police Station and gave report stating that at 7.00 P.M. he went to Perkit village and after collection of his clothes from the laundry shop while he was proceeding to his house at Housing Board Colony, Armoor on his
Hero Honda Passion Plus motorcycle bearing No AP-25/K-3142 on the way near Idgah at the village tank in the outskirts of Perkit some four unknown offenders waylaid him and beat him with sticks resulting that he fell down and the unknown offenders threatened with dire consequences and took him to the bushes and snatched one gold chain wg. about 1½ Tula, one gold ring wg. about ½ Tula, one Nokia cell phone No. 9440602991 and two ATM cards one of his wife and another belonging to him, one Titan watch, 6 pairs of clothes and his motorcycle and fled away with the booty all worth of
Rs.55,000/-. The age group of the offenders is 25 to 30 years.
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On that report, crime number 349/2008 was registered and took up the investigation and sent Pw1 to the hospital for treatment. On enquiry with the bank it is noticed that complainant’s
ATM card was operated and Rs.4000/- were drawn and from there, they have taken video photos of the user of the ATM card and they also obtained IMEI number of the cell phone of Pw1 and they came to know that cell phone was used by Shaik Kasim (A1) with SIM number 9705882535.
On 01.9.2008 they collected call details of SIM from the operators and caught hold A1 and A2 and interrogated them in the presence of Panchas and through them A3 and A4 were also caught and the stolen goods were recovered at their instance and the property was identified and thereafter at their instance the motorcycle which was thrown in the river Godavari was also recovered and the investigation established the guilt of the accused.
Hence, the charge.
3. On appearance of the accused A1 to A4, the copies were furnished and the lower Court examined A1 to A4 U/Sec. 239
Cr.P.C. framed the charges, and thereafter trial was commenced during which Pw1 to Pw16 were examined and exhibits P1 to P29 and M.O1 to M.O.5 were got marked. The defence got marked
Ex.D1 and D2 relevant portions in the 161 Cr.P.C. statements of
Pw1 and Pw10. Later examined the accused U/Sec. 313 Cr.P.C. and heard the arguments. On considering the facts and hearing the counsels, the lower Court found the appellants guilty and accordingly convicted and sentenced them as noted above.
4. Aggrieved by the said judgment and sentence, the present appeal is filed inter alia submitting that the judgment and sentence passed by the lower Court is not tenable as the identification proceedings of the accused and the property were not conducted as 4 Crl.A. No. 74/2012 per Rule 34 and Rule 35 of Criminal Rules of Practice and the recoveries made are not proved and the Panchas have not supported the evidence and the lower Court erroneously drawn the presumption under Section 114(a) of the Indian Evidence Act and the lower Court carried away by the evidence of Pw15 and did not consider Ex.D1 and Ex.D2 and therefore prayed for setting aside the judgment.
5. Heard both the counsels.
6. The point for consideration before this court is:
Whether the appellants/A1 to A4 have committed robbery while causing hurt to Pw1 and thereby committed the offence under Section 394 IPC and thrown the motorcycle into the river by A3 and A4 and thereby committed the offence under
Section 201 IPC and whether the prosecution proved the guilt of the accused beyond reasonable doubt?
7. POINT:
It is the case of the prosecution that the appellants are guilty and committed the offence and therefore, the lower Court rightly convicted the appellants and according to the appellants, they are innocent and the lower Court wrongly convicted them and prayed for acquittal.
8. Before proceeding with the contentions of the counsels, the substance of evidence on record is that of Pw1 who is the victim and he stated that he went to Perkit on his motorcycle No. AP-25/K- 3142, Hero Honda Passion Plus, around 7 to 8 P.M. when he reached Perkit, one person appeared on road and attacked with stick on the back of the neck, due to which he fell down, thereafter three persons joined him and they attacked him and beat him indiscriminately and also asked to remove shirt and pant and 5 Crl.A. No. 74/2012 accordingly he removed, his belongings were taken away, gold chain from the neck, gold ring, Nokia cell phone, two ATM debit cards, thereafter they gagged paper in his mouth and the culprits went away with the booty and after some time he gained conscious and went to Armoor and informed Damodhar Reddy (Pw2) and thereafter went to the Police Station and gave report. The police referred him to the hospital. He identified the properties gold chain
M.O.1, gold ring as M.O.2, Nokia cell phone as M.O.3, wrist watch as M.O.4 and M.O.5 Hero Honda Passion Plus motorcycle.
He was cross examined at length. He stated that he has not informed the police that A1 to A4 attacked him at once and the contradiction was marked as Ex.D1. He also narrated entire details of the incident. In the cross examination he stated he informed the police that he can identify at least two of the culprits out of four and further stated that the police called him to the Police Station and showed the property. He further stated that at Sub Jail, Kamareddy he saw the accused during Test Identification Parade. He denied the suggestion that he got political rivalry with A3, therefore, gave false complaint.
9. Pw2 stated that Pw1 informed him and they gave report.
10. Pw3 stated about his taking photographs of the scene of offence.
11. Pw4 is the Chief Manager, Inspection Mobile, Head Office,
State Bank of Hyderabad and stated that he worked at Armoor and further stated that the police enquired about the SB Account particulars and ATM Card and he informed them that Rs.4,000/- were withdrawn on 31.8.2008. The suggestions were denied by him.
12. Pw5 is the Manager of Credit Cell, Zonal Office, Hyderabad, further stated that he received information about theft of ATM cards 6 Crl.A. No. 74/2012 and cash of Rs.4000/- was withdrawn on 31.8.2008 at 10.54 P.M.
and the police obtained the copy of CC camera footage pertaining to the said transaction. He further stated that Ex.P5 is the C.D. copy which was handed over to the police with regard to the ATM footage.
13. Pw6 was examined as witness and he is the brother of A1 and he did not support the prosecution case.
14. Pw7 is the eye witness who identified A3 and A4. He is crucial witness and he is the Superintendent at Tahsildar’s Office, Bhainsa and he stated that on that day at about 10.45 P.M. he went to the
ATM situated besides SBH Branch, Nizamabad in order to draw money and at that time he saw two persons inside the ATM Centre trying to draw money, but unable to do so. Then at it was getting late, he went inside the ATM Centre and showed the said two persons how money is to be drawn from the ATM Centre. Later the said persons withdrawn money from the ATM Centre. Later he withdrawn money from the ATM and went away.
A3 and A4 are the persons who withdraw the money at ATM
Centre on that day and he identified them in the court. He further stated that he has not seen the accused prior to the incident. He further stated that 20 non-suspects were put there and Test
Identification proceedings were conducted and he cannot say the
ATM card number.
15. Pw8 is the Panch for scene of offence and he stated that
Ex.P7 Panchanama was conducted and Ex.P8 is the rough sketch.
16. Pw9 is the Panch for confession of A1 to A4 and he stated that at the request of the C.I. of Police Armoor he went as driver on
Tata Tavera along with the police and the police took his signatures and he further stated that he can identify A3 who was apprehended 7 Crl.A. No. 74/2012 at Ranga Reddy district and Ex.P9 to Ex.P12 are his signatures.
Since he did not support entire case of the prosecution, he was declared hostile and in the cross examination the suggestions were denied.
17. Pw10 is the person who lifted the vehicle from Godavari river and he stated that he is fisherman and at the request of the S.I. of
Police, Armoor he went to Godavari river and one motorcycle which was thrown in the river was recovered with the help of ropes.
18. Pw11 is the then S.I. of Police and he stated that he registered the case and issued FIR Ex.P13.
19. Pw12 is the Panch for confession along with Pw9 and he stated that there were four offenders in the custody of the police and gold chain, ATM cards, gold rings were seized in his presence and he signed on the white papers.
20. Pw13 is the Panch for identification of the property and he stated that Inspector of Police called him, he has shown the gold chain, gold ring, mobile phone and the police mixed them with other similar looking articles and called Pw1 for identification and Pw1 identified the properties and a Panchanama was conducted.
21. Pw14 is the doctor who treated Pw1 and issued Medical
Certificate Ex.P19.
22. Pw15 is the Investigating Officer and he stated about the arrest of accused and securing and examining the branch managers of the bank and collecting details and he gave detailed version as to how he collected the phone numbers and interrogation of A1 and
A2, A3 and A4. He also stated about IMEI number and CC camera footage and C.Ds.
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23. Pw16 is the Senior Civil Judge and he stated that on the request of the police, he conducted Test Identification Parade in the chambers of the Presiding Officer and issued summons to the witnesses and he conducted the Test Identification Parade in a room on 06.10.2008 at 2.30 P.M. and stated that the culprits were identified by Pw1.
24. In the light of the above evidence, the lower Court found the appellants guilty of robbery and accordingly convicted them.
25. The learned counsel for the appellants vehemently submitted that procedure of conducting Test Identification Parade by Pw16 in the Chambers is contrary to Rule 34 of the Criminal Rules of
Practice and the police conducting property identification proceedings in the Police Station is contrary to Rule 35 of Criminal
Rules of Practice and therefore, the entire proceedings are vitiated.
The learned counsel further submitted that when A3 is known to
Pw1 and his identification of A3 is of no value. If A3 is involved in the offence, his name should have been mentioned in the complaint since Pw1 knows him being villager. Therefore, entire prosecution is suspicious. The counsel further submitted that Panchas have not fully supported the prosecution case and they were declared hostile and on the sole testimony of Pw15 accused cannot be convicted.
Therefore, prayed for acquitting the appellants.
26. The learned Public Prosecutor submitted that evidence clearly shows that A1to A4 were involved in committing the offences and accordingly conviction is proper and further the Public Prosecutor submitted that Pw1 has no enmity to complain against A1 to A4 and fact of recovery of the motorcycle and gold ornaments from the accused clearly establish the case against them and therefore, prayed for dismissing the appeal.
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27. Now coming to the appreciation of these arguments and evidence:
In the present case, Pw1 gave complaint stating that four unknown offenders have attacked him and beat him. In fact A3 is known to him according to him. The evidence of Pw1 and his complaint shows that on that day at Perkit it was dark, he was beaten and was taken to the bushes where there was darkness.
Therefore, there was no possibility for him to clearly identify the face of A3. Even otherwise the fact that his identifying at the chambers of Pw16 even if kept aside, the evidence of Pw7 who has no interest in the matter, who is totally independent witness clearly shows that A3 and A4 both have came to the ATM Centre of the
SBH and put up cards and tried to take out money and when they were unable to draw money he came and helped them as to how to take money. To this extent, the evidence of Pw7 cannot be brushed aside.
28. The perusal of CC camera footage which was given by the
Branch Manager to the Investigating Officer clearly shows that A3 and A4 both at the ATM Centre tried to draw the cash from the ATM and they could not succeed. The footage also shows the entry of
Pw7 and his explaining manner of using the ATM card and getting money. The subsequent footage also shows that amount was successfully drawn by A3 and A4. This clearly indicates and supports the prosecution case. Pw7 has clearly spoken about the involvement of A3 and A4 and he clearly stated that two persons made attempt to draw the money. Further the evidence of Pw4 and
Pw5 both indicates that an amount of Rs.4,000/- was drawn from the ATM on that night after the incident. The CC camera footage also shows the date and time which is consistent with the oral evidence. Added to this, even the close scrutiny of the C.D. shows that the cash is approximately Rs.4000/- was drawn which is 10 Crl.A. No. 74/2012 containing Rs.100/- denomination and was counted and both A3 and A4 have went out of the ATM Counter. This itself is sufficient to hold that A3 and A4 guilty of the same as the evidence of Pw1,
Pw4, Pw5 coupled with the evidence of Pw15 and Pw7 establishes the involvement of A3 and A4 in the offence. Irrespective of the identification made by Pw1, this evidence itself is sufficient to hold
A3 and A4 guilty. The contentions contra of the counsel for the appellants are not tenable.
29. Now coming further: In the present case though Pw9 has not fully supported the prosecution case, but he has clearly stated that some offenders were brought out and his signatures were taken on papers and he acted as driver of the Tavera vehicle and he identified his signatures as Exhibits P9 to P12.
30. Now perusing the evidence of Pw12, he clearly stated that the police seized one gold chain, gold ring, cell phone, ATM cards from the possession of four offenders, he signed on papers. Though they did not identify the culprits, but have admitted the fact of presence of 4 culprits and seizure of gold chain, ATM card, cell phone and ring from the possession of offenders. It is settled proposition of law that though witnesses turned hostile, their entire evidence need not be rejected. By reading the evidence of Pw9 and Pw12, it clearly shows about arrest of offenders. Further, the evidence of Pw10 is another factor. He is fisherman and was called by the police and they took out motorcycle from Godavari river. On perusing the photos filed and a C.D. produced clearly shows that fishermen including Pw10 have taken out the motorcycle from the river. The fact that the motorcycle is in the river was made known to the police only by A3 and A4 and this fact was clearly stated even by
Pw15. Therefore, by reading entire evidence, it clearly shows that
A1 to A4 together joined and committed robbery and further the 11 Crl.A. No. 74/2012 evidence of Pw14 shows that he examined Pw1 on that day and found injuries and Pw1 also stated that he was beaten with sticks and the sticks were recovered from the scene as stated by photographer and also by the Panch. Therefore, it is clear that while taking away the ornaments Pw1 was beaten and caused injuries. Therefore, all the ingredients of section 394 IPC are clearly established by the prosecution.
31. Coming to the contention of the counsel for the appellants regarding conducting of Test Identification Parade under Rule 34 and Identification of property under Rule 35 of Criminal Rules of
Practice:
A perusal of Rule 34, there is no bar for conducting Test
Identification Parade in the chambers of officer and there is no rule that it shall be conducted at the jail premises. What is required by the officer conducting Test Identification Parade is to take all the precautions to avoid witnesses to have access to see the accused.
In the present case, Pw16 has categorically stated that he has taken all the precautions to avoid witnesses to have access to see the accused and prior to they being called inside the chambers.
Further, the counsel for the appellants submitted that since the accused were on bail and contended that number of times there is possibility of accused being shown to the witnesses by the police.
When the accused has taken a chance of taking bail, such risk always exists. But on hypothesis, the Test Identification Parade conducted by Pw16 with utmost care cannot be brushed aside.
Hence, the contentions of the counsel for the appellants that Rule 34 of the Criminal Rules of Practice was not complied, is not tenable.
32. Now coming to the conducting of identification of property:
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No doubt the identification of property ought to have been conducted at the chambers of the Presiding Officer, but if the same was not done and conducted at the Police Station, even otherwise it is not the case of the accused that the property belongs to them.
Further, when the motorcycle and gold ornaments were identified by
Pw1 as belonging to him, even if the Test Identification of Property is not conducted in the chambers of the Presiding Officer, it will not affect the prosecution case since Pw1 has identified the same in the court during the course of giving evidence.
33. With regard to the contention of the counsel about Ex.D1 and
Ex.D2, beating by one accused and then, thereafter all the accused attacking or all the accused attacked once, is not a discrepancy that too when the incident occurred in the night hours and mere discrepancy under Ex.D2 is not material. Hence, they no way affect the prosecution case.
34. On entire reading of the evidence and on close scrutiny of the
CC camera footages and evidence of the bank officials and independent witness Pw7 and also fisherman Pw10, the prosecution has established the guilt of the appellants/accused beyond all reasonable doubt and the fact of throwing of motorcycle into the
Godavari river is also established and the lower Court after thorough appreciation of the facts and law, rightly convicted the appellants and there is neither error of law nor fact in the judgment of the lower Court. The appeal is devoid of merits and is liable to be dismissed.
35. IN THE RESULT, this appeal is dismissed. The conviction and the sentences passed by the lower Court are confirmed.
Dictated to personal assistant, transcribed by him, corrected and
pronounced by me in Open court on this the 26th day of February, 2013.
Sessions Judge,
Nizamabad
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