1
TABULOR FORM TO BE APPEARED TO THE FAIR COPY OF THE
JUDGMENT IN ACCORDANCE WITH RULE 67 OF CRIMINAL RULES OF PRACTICE IN SESSIONS CASE NO. 132/2017 ON THE FILE OF ASST. SESSIONS JUDGE'S COURT : : SRIKALAHASTI.
1.Sessions Case No. :S.C. No. 132 of 2017 2 Complainant :The state rep., by Inspector of Police, Renigunta Rural Circle.
3 Description of the1. Derangula Narasinha Rao,31 years, accused : S/o D.Mangaiah, D.No. 5-83, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
2. Mangapati Venkateswara Rao, age 44 years, S/o M.Venkataramaiah, D.NO. 5- 66, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour. (DIED)
3. Pallapu Lazaru, age 36 years, S/o P.Baburao D.No.5-61, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
4. Pallapu Venkataiah, age 30 years, S/o P.Baburao, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
5. Katta Venkateswara Rao, age 45 years, S/o Late Subbarao, Uppalur village, Kankipadu Mandal, Krishna District. SC Mala by caste, Cultivation.
6.Purama Mohan @ Thataiah, age 23 years, S/o P.Veeraraju, Uppalur village, Kankipadu Mandal, Krishna District. Bestha by caste, Coolie.
7. Gogulamudi Govindulu, age 45 years, S/o.G.Koteswara rao, Uppalur village, Kankipadu Mandal, Krishna District. SC Mala by caste, Coolie.
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8. Kumpati Srinivasulu, age 34 years, S/o Venkateswara rao, Uppalur village, Kankipadu Mandal, Krishna District. SC Mala by caste, Driver.
9. Dandagula Ramakrishna, age 35 years, S/o Venkateswara rao, D.No. 6-50, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
10. Tambsetti Masaiah, age 32 years, S/o Kotaiah, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
11. Kalapala Ravi Kumar, age 24 years, S/o Peturu, Uppalur village, Kankipadu Mandal, Krishna District. SC Madiga by caste, Lorry driver. (DIED)
12. Dandagula Bosu, age 24 years, S/o D.Srinivasulu, D.No. 6-26 , Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
13. Dandagula Srikanth, age 27 years, S/o S/o D.Srinivasulu, D.No. 6-26 , Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Mason.
14. Boorsu Pichaih, age 23 years, S/o B.Ramulu, D.No. 5-81, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
15. Tirumlakonda Venkatapathi, age 23 years, S/o Edukondalu, D.No. 5-79, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
16. Vemula Srinivasulu , age 27 years, S/o Venkateswara rao, D.No. 5-73, 3
Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
17. Derangula Yesubabu, age 31 years, S/o Gopaiah, D.No.6-19, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste.
18. Challa Anjaneyulu, age 32 years, S/o C.Venkateswara rao, D.No. 25-395, Ramayamma Rao Pet, Nuziveedu, Krishna District.
19. Challa Mohan Babu, age 25 years, S/o Veerababu, D.No. 25-385, Praniyolu Church street, Nuziveedu, Krishna District.
20. Palli Pavan kumar, age 29 years, S/o Mohan rao, D.No. 18-257, Kotha peta, Backside of RTC Bus stand , Nuziveedu, Krishna District.
21. Gajula Durgakanth, age 23 years, S/o Gopal rao, Ramayamma Rao Pet, Hanuman junction road, Nuziveedu, Krishna District.
22. Kondeti Ravi, PC 669, S/o Subba Rao, 1st battalion, Yusufguda, Hyderabad, R/o Mantena Harijanawada, Kankipadu mandal, Krishna District. Vaddera by caste. (Absconding)
23. Gunji Edulondalu, age 40 years, S/o G.Venkateswara rao, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste. (Absconding) 4 Date of occurrence : 21-02-2016 5 Date of complaint : 21-02-2016 6 Date of apprehension of29-02-2016 the accused :
4 7 Date of committal order : 30/03/17 8.Date of commencement04/12/19 of trial :
9 Date of close of trial : 14-02-2020
10. Date of sentence or14-12-2020 order :
11. Charges :Charges : U/Secs. 398 and 399 of I.P.C.
RESULT: Found not guilty
(i) In the result, A.1, A.3 to A.10, A.12 to A.21 are found not guilty for the offences punishable U/Secs.398 and 399 of Indian Penal
Code,1860 and A.1, A.3 to A.10, A.12 to A.21 are acquitted for the same U/Sec.235 (1) of the Code of Criminal Procedure,1973. The bonds and bails of all accused shall stand cancelled after lapse of six months.
(ii) M.Os 1 to 8 , M.Os. 11, 12 to 14 shall be destroyed after lapse of appeal time.
(iii) M.O. 9 (Tipper vehicle bearing Reg.No. AP 05 N U 4399) and Bajaj
Discovery motor cycle bearing Reg. No. AP 16 DD 0078 shall be returned to the owners I.e to A4/Pallapu Venkataiah and A7/Gogulamudi
Govindudu respectively and M.O.10( Chevrolet car bearing Reg. No.AP 20 W 9666) which was given to interim safe custody shall hold good after appeal time is over.
EXPLANATIONFOR DELAY: This case was received as made over from the Hon'ble District &
Sessions Court, Chittoor District on 28-04-2017 Charges were framed
U/Secs. Secs.398 and 399 of I.P.C against all these accused on 03-06- 2019. The trial commenced on 04-12-2019 and closed 14-02-2020. On 16-03-2020 these accused were explained incriminating evidence against them U/sec.313 Cr.P.C. Heard arguments finally 14-02-2020 P.Ws.1 to Pws.09 were examined and marked Exs.P.1 to P.49 and MOs. 1 to 14 marked. Judgment pronounced on 14.12.2020. Hence, no avoidable delay in this court.
PRL.ASST.SESSIONS JUDGE, TIRUPATI
FAC ASST.SESSIONS JUDGE, SRIKALAHASTI
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IN THE COURT OF ASSISTANT SESSIONS JUDGE,
SRIKALAJASTI.
Present:- Sri Y.SRINIVASA RAO,
Principal Assistant Sessions Judge, Tirupati.
FAC Assistant Sessions Judge, Srikalahasthi
Monday, the 14th day of December, 2020
S.C. No. 132 of 2017
(P.R.C.No. 09/2017 on the file of the Additional Judicial Magistrate of
First Class, Srikalahasti connected with Cr.No. 22 of 2016 of
Renigunta Rural Circle.).
1. Name of theState: Represented by the Inspector of Police, Complainant Renigunta Rural Circle.
2. Name of the1. Derangula Narasinha Rao,31 years, S/o Accused D.Mangaiah, D.No. 5-83, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
2. Mangapati Venkateswara Rao, age 44 years, S/o M.Venkataramaiah, D.NO. 5-66, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour. (DIED)
3. Pallapu Lazaru, age 36 years, S/o P.Baburao D.No.5-61, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
4. Pallapu Venkataiah, age 30 years, S/o P.Baburao, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
5. Katta Venkateswara Rao, age 45 years, S/o Late Subbarao, Uppalur village, Kankipadu Mandal, Krishna District. SC Mala by caste, Cultivation.
6 6.Purama Mohan @ Thataiah, age 23 years, S/o P.Veeraraju, Uppalur village, Kankipadu Mandal, Krishna District. Bestha by caste, Coolie.
7. Gogulamudi Govindulu, age 45 years, S/o.G.Koteswara rao, Uppalur village, Kankipadu Mandal, Krishna District. SC Mala by caste, Coolie.
8. Kumpati Srinivasulu, age 34 years, S/o Venkateswara rao, Uppalur village, Kankipadu Mandal, Krishna District. SC Mala by caste, Driver.
9. Dandagula Ramakrishna, age 35 years, S/o Venkateswara rao, D.No. 6-50, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
10. Tambsetti Masaiah, age 32 years, S/o Kotaiah, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
11. Kalapala Ravi Kumar, age 24 years, S/o Peturu, Uppalur village, Kankipadu Mandal, Krishna District. SC Madiga by caste, Lorry driver. (DIED)
12. Dandagula Bosu, age 24 years, S/o D.Srinivasulu, D.No. 6-26 , Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
13. Dandagula Srikanth, age 27 years, S/o S/o D.Srinivasulu, D.No. 6-26 , Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Mason.
14. Boorsu Pichaih, age 23 years, S/o B.Ramulu, D.No. 5-81, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
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15. Tirumlakonda Venkatapathi, age 23 years, S/o Edukondalu, D.No. 5-79, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
16. Vemula Srinivasulu , age 27 years, S/o Venkateswara rao, D.No. 5-73, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste, Labour.
17. Derangula Yesubabu, age 31 years, S/o Gopaiah, D.No.6-19, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste.
18. Challa Anjaneyulu, age 32 years, S/o C.Venkateswararao,D.No.25-395, Ramayamma Rao Pet, Nuziveedu, Krishna District.
19. Challa Mohan Babu, age 25 years, S/o Veerababu, D.No. 25-385, Praniyolu Church street, Nuziveedu, Krishna District.
20. Palli Pavan kumar, age 29 years, S/o Mohan rao, D.No. 18-257, Kotha peta, Backside of RTC Bus stand , Nuziveedu, Krishna District.
21. Gajula Durgakanth, age 23 years, S/o Gopal rao, Ramayamma Rao Pet, Hanuman junction road, Nuziveedu, Krishna District.
22. Kondeti Ravi, PC 669, S/o Subba Rao, 1st battalion, Yusufguda, Hyderabad, R/o Mantena Harijanawada, Kankipadu mandal, Krishna District. Vaddera by caste. (Absconding)
23. Gunji Edulondalu, age 40 years, S/o G.Venkateswara rao, Uppalur village, Kankipadu Mandal, Krishna District. Vaddera by caste. (Absconding)
3. Nature of offence Charge U/Secs. 398, and 399 of I.P.C.
4.PleaofthePleaded not guilty. Accused 5.Finding of theFound not guilty for the offence punishable
Judge U/Secs. 398, and 399 of I.P.C.
8 6.Sentence or Order In the result, A.1, A.3 to A.10, A.12 to A.21 is found not guilty for the offences punishable U/Secs.398 and 399 of Indian Penal Code,1860 and A.1, A.3 to A.10, A.12 to A.21 are acquitted for the same U/Sec.235 (1) of the Code of Criminal Procedure,1973. The bonds and bails of all accused shall stand cancelled after lapse of six months
7. Property OrderM.Os 1 to 8 , M.Os. 11, 12 to 14 shall be destroyed after lapse of appeal time. M.O. 9 (Tipper vehicle bearing Reg.No. AP 05 N U 4399) and Bajaj Discovery motor cycle bearing Reg. No. AP 16 DD 0078 shall be returned to the owners I.e to A4/Pallapu Venkataiah and A7/Gogulamudi Govindudu respectively and M.O.10( Chevrolet car bearing Reg. No.AP 20 W 9666) which was given to interim safe custody shall hold good after appeal time is over. This case is coming before me on 14.12.2020 for final hearing in the presence of Additional Public Prosecutor for Complainant and of Sri P.Venkatadri, Advocate for these accused and having stood over for consideration till this day, this Court delivered the following J U D G M E N T :- This is a case of an offence punishable Under Sections 398, and 399 of IPC against these accused in Cr.No. 22/2016 of Central Crime Station, Tirupati.
2) The case of the prosecution in succinct that : –
This is the police case by the State represented by the
Inspector of Police, Renigunta Rural Circle, against the accused referred to above. The Offences under sections 398 and 399 of
Indian Penal Code,1860 (herein after referred to IPC) are stated to have been committed by the above accused, who are alleged to be dacoits/robbers, are said to be resident of Krishna District. Out of these accused, A. 22. Kondeti Ravi is a police constable (PC 669), 1st battalion, Yusufguda, Hyderabad, and he is also resident of
Mantena Harijanawada, Kankipadu mandal, Krishna District. But,
A.22 and A.23 are shown as absconding. A.2 and A.11 died pendentilite. The scene of offence is Vinayaka Temple, Kobaka 9 village, Yerpedu mandal, Tirupati Urban city, Chittoor district. The offence was said to have been taken place on 21st February, 2016, at 01-40 hours. The basis for this case is the report of L.W.1 Ammilineni
Bharat Kumar who is resident of Kobaka village. L.W1 to L.W.8 are designed as eye witnesses of the alleged robbery. The theory of the prosecution is such that all these accused are said to have attempted to commit robbery or dacoity arming with deadly weapons such as rods and pipes and also said to have made such preparation for committing dacoity to take Lord Vinayaka idol from the Lord Vinayaka Temple on 21-02- 2016,at 1-40hours at the scene of offence. L.W.17 Sri K.Sainath,
Inspector police took up investigation. On 29-02-2016, A.1 to A.21 were arrested and were released on Court bail as per orders of the Hon’ble
High Court of Judicature, Hyderabad vide Criminal Petition No. 8294 of 2016 dated 21-06-2016. An iron pipe,iron tighter, iron rope cut pieces, white pancha and one pair of chappals are stated to have been seized by the investigation officer. LW.15 Sri Gollaplli Hari, Principal Junior Civil
Judge, Srikalahsti conducted Test Identification Parade on 16-04-2016 at
Sub-Jail, Srikalahasti. Hence, the charge for offences punishable under sections 398 and 399 of the Penal Code,1860.
3) The learned Additional Judicial First Class Magistrate, , Srikalahsti took cognizance of the offences punishable U/Secs. 398 and 399 of
I.P.C. vide P.R.C.No. 09/2017. On appearance of these accused, copies of documents were furnished to them as required U/Sec.207 of Criminal Procedure Code, 1973. The learned Magistrate committed the case to the Court of Sessions, Sessions Division,
Chittoor District as the offences punishable Secs. 398 and 399 of
I.P.C. which are exclusively triable by the Court of Sessions. The
Hon'ble Sessions Judge, Chittoor made over this case vide Sessions
Case No. 132/2017 to this Court for disposal according to law .
4) After appearance of accused and after hearing the learned
Additional Public Prosecutor and the learned counsel for all these
10 accused, charges U/Secs. 398 and 399of I.P.C. against these accused were framed, read over and explained to them in Telugu.
On understanding the same, they pleaded not guilty and claimed to be tried.
5). During the trial, to substantiate the case of the prosecution, the prosecution examined P.Ws. 1 to 9; Exhibits.P1 to P.49 and Mos.1 to 10 were marked on behalf of the prosecution.
6) After closure of prosecution side evidence, these accused were examined U/Sec.313 of Cr.P.C by explaining the incriminating evidence available against them. All these accused denounced the same and reported no defence evidence on his behalf. Hence, the defence evidence was closed.
7) Heard the learned Additional Public Prosecutor and the learned counsel for these accused.
8) Now, the points for consideration are:
1. Whether these accused who is said to have armed with any deadly weapon, attempted to commit robbery or dacoity ?
2. Whether theses accused made any preparation for committing dacoity?
3. If so, whether the prosecution has established the guilt of the these accused for the offences punishable Under Sec.398 and 399 of IPC beyond all reasonable doubt?
Point No.1:-
9) P.Ws.1 to 4 are set as eye-witnesses of the alleged incident. There is nothing on record why the prosecution has given up some eye witnesses 11 (L.W.2/Bathi naidu, L.W.3/A.Kumari, L.W.6/Chitteti Deva and
L.W.8/A.Prakash naidu). P.Ws.1 to 4 are made say that they know about the incident and saw the incident.
10) P.W.1 A. Bharat Kumar is a defacto – complainant who is alleged to have lodged Exhibit P.1 report to police based on which
Ex.P48/First Information Report dated 21-02-2016 was issued and investigated into and even P.Ws.2 to 4 pose to have then seen about the incident which was alleged to have been taken place on on 21st
February, 2016, at 01-40 hours. Thus, the basis for this case is the report of P.W.1 Ammilineni Bharat Kumar who is resident of Kobaka village. That P.W.1 is talking rattling meaningless is clear from the fact that he has no definite knowledge about the weapons. He could not give the details of any of the weapons that are allegedly used by any of these accused nor explained as if any of these accused made an endeavour to commit a crime. It is the position of the theory of attempt to commit robbery or dacoity that is very important in this case and these ingredients (of intention to commit the crime and having made preparations) decide the point of attempt to commit robbery or dacoity.
11) The theory of the prosecution that all these accused were stated to have attempted to commit theft of Lord Vinayaka Temple. Geneally, ‘attempt’ is known as an endeavour to commit a crime or unlawful act.
What constitutes an “attempt” is a mixed question of law and fact, depending largely on the circumstances of the particular case. “Attempt” defies a precise and exact definition. In sum, a person commits the offence of “attempt to commit a particular offence” when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. This proposition of law was held in State of
Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57.
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12) That this witness (P.W.1) has forsaken his conscience would be clear from the fact that he wrote Exhibit P.1. He mentioned in this report about the weapons as if these accused used only stones and pipes. If that is recital in the report Exhibit P.1 there is no deadly weapon as such existing and mark it this witness has the hardihood to say that that recital is false in the report which has been written by him. P.Ws.2 to 4 owing to their being interested wanted to put the theory of P.W.1 as such. These witnesses did not see actual occurrence of the incident. They would have it they saw only some pipes and stones. Even these witnesses are a mere underling of the Police officials. See. M.O.12 is a plastic pipe. It is not an iron pipe at all. P.W.1 owing to his being interested wanted to narrate as if these accused armed iron pipe, iron rod, iron hook, two sticks, iron rope. These words are conspicuously absent in Exhibit P.1.
P.W.3 B.Sudhakar also admits that he did not specifically observe the nature of the weapons.
13) An attempt to commit an offence is an act or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part- execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation and possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted.
14) Under section 390 of the Penal Code,1860, 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. It is curious to see that 13
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.The Explanation to this section 390 of IPC says that 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.
15) Section 391 of the Penal Code,1860 defines the word ‘Dacoity’.
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 398
IPC reads as follows:
“Attempt to commit robbery or dacoity when armed with deadly weapon. —If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years”.
16) This witness (P.W.1) is again unreliable for other reasons. What he stated and what he saw and what he found at the scene of offence has faded from his memory. He knows not who tied the idol of Vinayaka with the alleged iron rope, nor could he remember the weapons and it is significant to see he could not now classify the weapons produced before this court . See. M.O.1 Iron rope; M.O.2 Tighter; M.O.3 Iron pipe;
M.O.4 a Fair chappals. He knows not what tighter is. These are from police people. This witness admits that he woke up from sleep upon hearing sounds from outside. If that is so, he would have it he heard only sounds. Therefore, he only parrotlike repeats what Exhibits P.2 to 4 contains.
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17) That this witness P.W.2 B.Bhupathi is also forsaken his memory is clear from the fact that he knows not the height of the Idol. That is why he puts the height of Lord Vinayaka idol is either 3 feet or 4 feet. That is the case of the prosecution, the theory of prosecution as to preparation or attempt to commit of such idol by these accused is blatant falsehood.
There is no need to bring a tipper or other vehicles, and tighter and iron rope to lift an idol of 3 feet height. He could not give the details of vehicles. He has not seen any of these accused is clear from the fact that he admits that there were street lights at the scene of offence. P.W.9 being interested wanted to put distance from scene to police station is 5 km to 6 kms. But, P.W.8, who did not investigate this case, says as if it is only 2km. P.W.9, who poses to have investigated this case, does not even peruse the recitals of F.I.R ( Exhibit P.48) is clear from the fact that it shows the distance is only 2kms.
18) As I said already, the theory of attempt to commit robbery or dacoity is suspicious. P.W.3 also admits that he did not observe the weapons that are alleged armed by these accused. What he stated is that all accused were running away and then these people chased them. This is not at all the case of the prosecution. When these accused were running away , the question threatening P.W.1 by deadly weapon does not arise. P.W.4
A. Ramachandra naidu admits that he did not identify any of these accused, nor could he know what vehicles are used in the alleged incident. Curiously enough, neither of these eye-witnesses had prior acquaintance with these accused. As is rightly convinced by the learned vakil for the accused, P.Ws 5 to 9 are not eye-witnesses to the alleged robbery or dacoity. I will show the reasons justifying that the proceedings of Test Identification Parade (Exhibit P.5 to 46) are not substantive piece of evidence.
19) P.W.9 Sri K.Sainath, Inspector of police is investigation officer. As in the case of investigation officer he also manifested zeal in the matter the moment he took up this case for investigation of this case there is P.W.8 Sri V.Ramakrishaniah, Sub inspector of police to issue 15 only First Information Report (Exhibit P.48). P.W.9 plays second fiddle. He refers to confession and seizure. Drafting of confessional statement and seizure is now Greek and Latin to him. It is suspicious to see whether he knows not the proposition of law that ‘take possession of contrary to the wishes of the owner of the property’. The
Hon’ble Supreme Court held in Suresh Nanda v. CBI, (2008) 2 SCC (Cri)
121, a seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession. He poses to have seized M.Os 1 to 14. As I said earlier,
M.O.12 plastic pipe was referred to in Exhibit P.1 by P.W.1. But, he poses to have seized this pipe showing as if it was armed by these accused.
That his knowledge is defective is clear from the fact that no witness referred to M.O.12 as if any of accused used it to commit robbery or dacoity nor stated as if it was used to attempt robbery or dacoity. Well, if these confession and seizure reports were genuine, look at the conduct of the mediators.
20) P.W.5 K.Prasad and P.W.6 K. Mallikarjuna Reddy , Village Revenue
Officer pose to have acted as mediators. It is seriously suspicious to see the presence of P.W.5 as he admits that he did not take any permission from Mandal Revenue Officer to act as a mediator and admits that he knows not the nature of the weapons seized. He could not give the numbers of the seized vehicles. When a question is put to P.W.5 about identification of these accused, he only fences and would not answer and he has no personal acquaintance with any of these accused. These two only played to the tune of some wire puller is clear from the fact that they themselves had no knowledge as to how the confession was recorded.
21) Of course the learned Additional Public prosecutor argues that confession has to be a direct acknowledgment of the guilt of the offence in question and such as would be sufficient by itself for conviction. There could be no question about that proposition. But, if it falls short of such a plenary acknowledgment of guilt it would not be a confession even though the statement is of some incriminating fact which taken along with other 16 evidence tends to prove his guilt. Such a statement is admission but not confession. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. Confession does not include an admission of a fact, however incriminating, which by itself would not be enough to prove the guilt of the crime in question, although it might, together with the other evidence on record, lead to the conclusion of the guilt of the accused person. See. Kanda
Padayachi v. State of T.N., 1971 SCC (Cri) 623.
22) The prosecution mainly relies on Ex.P2 Scene observation &
Seizure mahazarnama; Ex.P3 Arrest Mahajarnama dt. 28-02-2016, at 1:30 pm; Ex.P4 and Arrest Mahajarnama dt. 28-02-2016, at 4:30 pm. That confessional statement of this kind should have been relied upon as legitimate eye-openers for the alleged scene observation, confession and seizure is really astonishing. Having known the attitude of
P.W.5 and P.W.6 (Village Revenue Oficer), and their his being always tethered by ties of obligation to the police reports (Exhibits P.2 to P.4) of this scanty nature of the kind this Court has before it could not have been relied upon with any grace, nor does it appear that the alleged confession and seizure have any sanctions of any authenticity. The internal nature of these Mahazarnams is such that it is shern of any genuineness.
P.W.9/Investigation Officer admits that panch slips are not affixed on
M.Os 1 to 14. The rough sketch Exhibit P.49 is too vague to give any information.
23) I have till now relied on documentary evidence and the admissions on the part of the prosecution. A word on the evidentiary value of test identification might not be out of place. The prosecution relied on Exhibit
P.5 to P.46 and oral evidence of the learned Principal Junior Civil Judge (P.W.7) who conducted the Test Identification Parade and stated to have followed the procedure as contemplated under Rule 34 of the Criminal
Rules of Practice. The learned vakil for these accused relied on Bommidi
Mallikharajuna alias Malka and Ors Vs. State of Andhra Pradesh, (2004) 1 ALD (Crl.) 391 wherein it was held that identification proceedings 17 cannot be substantive evidence. I agree with this proposition. As was pointed out in R.Shaji Vs.State of Kerala, AIR 2013 SC 651, if the witness knew the accused, Test Identification is meaningless. In this case on hand, as seen from the statements of suspects to whom the parade was conducted , all these accused stated that police showed their photographs to the witnesses. See. Exhibits P. 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 to 47. These statement of suspects/accused show that the police photographed these accused by cell phone and showed those photos to the witnesses. Therefore, any identification of these accused during the Test identification of parade is of no use to the theory of the prosecution. Of-course P.W.1 could have identified A.1 to
A.8, A12, A.14, A.15 and A.21; P.W.2 could have identified A.1, A.2, A.5 to
A.10, A.15, A.16 and A.19; P.W.3 could have identified A.1 to A.9, A.11,
A.15, A.17, A.19 to A.21; and P.W.4 could have identified A.2 to A.8, A.10 to A.12, A.14, A.16 and A.19. From the documents Exhibits P. 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 to 47 discussed supra the theory of identification is a blatant falsehood, when it is stated that the photos of these accused were shown to the witnesses.
24) Mulling over all these facts and circumstances of this case, I hold that the prosecution fails to prove these accused armed with any deadly weapon, attempted to commit robbery or dacoity. This Court holds that the essential ingredients of section 398 of the Penal Code,1860 are not made out in this case. I find the point no.1 in the negative.
Point No.2:-
25) Section 399 of the Penal Code,1860 deals with making preparation to commit dacoity. It is needless to say that in all robbery there is either theft or extortion. The unlawful and forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear. Theft or extortion when caused with violence causing or causing fear of death, hurt or wrongful restraint is robbery. When there is no theft committed, then as a natural corollary, there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is 18 in the use of violence causing or causing fear of death, hurt or restraint.
Violence must be in course of theft and not subsequently. Also, it is not necessary that violence should actually be committed but even attempt to commit it is enough.
26) It is well-settled law that mere suspicion of police officer because of non-explanation of accused for their presence near a shop at odd hours would not be enough to bring home charge of preparation to commit robbery or dacoity. As I said earlier, arming deadly weapons by these accused is not proved by the prosecution with cogent evidence. When the eye-witnesses stated that they have no clarity to identify the accused and expressed their inability to state the nature of the weapons, this Court holds that it is unsafe to convict these accused for the charge under section 399 of Penal Code,1860.
27) Pondering over all these facts and circumstances, this Court holds that the prosecution fails establish the essential ingredients of section 399 of Penal Code,1860 in this case. I find point no.2 also in the negative.
Point No.3:-
28) It follows that the prosecution fails to prove the guilt of A.1, A.3 to
A.10, A.12 to A.21 for the offences punishable under sections 398 and 399 of Indian Penal Code,1860 beyond all reasonable doubt. I find the point no.3 the negative.
(i) In the result, A.1, A.3 to A.10, A.12 to A.21 are found not guilty for the offences punishable U/Secs.398 and 399 of Indian Penal
Code,1860 and A.1, A.3 to A.10, A.12 to A.21 are acquitted for the same U/Sec.235 (1) of the Code of Criminal Procedure,1973. The bonds and bails of all accused shall stand cancelled after lapse of six months.
(ii) M.Os 1 to 8 , M.Os. 11, 12 to 14 shall be destroyed after lapse of appeal time.
19
(iii) M.O. 9 (Tipper vehicle bearing Reg.No. AP 05 N U 4399) and Bajaj
Discovery motor cycle bearing Reg. No. AP 16 DD 0078 shall be returned to the owners I.e to A4/Pallapu Venkataiah and A7/Gogulamudi
Govindudu respectively and M.O.10( Chevrolet car bearing Reg. No.AP 20 W 9666) which was given to interim safe custody shall hold good after appeal time is over.
Typed to my dictation to the Typist, corrected and pronounced by me in the open Court, on this the 14th day of December, 2020.
PRINCIPAL ASSISTANT SESSIONS JUDGE, TIRUPATI.
FAC ASSISTANT SESSIONS JUDGE, SRIKALAHASTI.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution: For Defence:
P.W.1: Sri A. Bharat Kumar P.W.2: Sri B.Bhupati P.W.3: Sri B.Srdhakar P.W.4: Sri A. Ramachandra Naidu P.W.5: Sri K.Prasad P.W.6: Sri K.Mallikarjuna reddy P.W.7: Sri G.Hari, Principal Junior Civil Judge. P.W.8: Sri V.Ramakrishaniah, Sub-Inspector of police. P.W.9: Sri K.Sainath, Inspector of police.
DOCUMENTS MARKED
For Prosecution:
Ex.P1: Report of P.W.1 Ex.P2: Scene observation & Seizure mahazarnama Ex.P3: Arrest Mahajarnama dt. 28-02-2016, at 1:30 pm Ex.P4: Arrest Mahajarnama dt. 28-02-2016, at 4:30 pm Ex.P5: Proceedings of T.I parade Ex.P6:Suspects /A2and Non suspects signatures
Ex.P7: T.I parade proceedings of A3
Ex.P8: T.I parade proceedings of A4 Ex.P9: T.I parade proceedings of A5 Ex.P10:T.I parade proceedings of A6 Ex.P11: T.I parade proceedings of A Ex.P12: T.I parade proceedings of A8 Ex.P13: T.I parade proceedings of A9 Ex.P14: T.I parade proceedings of A10 Ex.P15: T.I parade proceedings of A11 Ex.P16: T.I parade proceedings of A12 Ex.P17: T.I parade proceedings of A13 20
Ex.P18: T.I parade proceedings of A14 Ex.P19: T.I parade proceedings of A15 Ex.P20: T.I parade proceedings of A16 Ex.P21: T.I parade proceedings of A17 Ex.P22: T.I parade proceedings of A18 Ex.P23:T.I parade proceedings of A19 Ex.P24:T.I parade proceedings of A20 Ex.P25: T.I parade proceedings of A21 Ex.P26: Deposition of LW9 Arcot Indrani Ex.P27: Statement of suspect/A1 Ex.P28: Statement of suspect/A2 Ex.P29: Statement of suspect/A3 Ex.P30: Statement of suspect/A4 Ex.P31: Statement of suspect/A5 Ex.P32: Statement of suspect/A6 Ex.P33: Statement of suspect/A7 Ex.P34: Statement of suspect/A8 Ex.P35: Statement of suspect/A9 Ex.P36: Statement of suspect/A10 Ex.P37: Statement of suspect/A11 Ex.P38: Statement of suspect/A12 Ex.P39: Statement of suspect/A13 Ex.P40: Statement of suspect/A14 Ex.P41: Statement of suspect/A15 Ex.P42: Statement of suspect/A16 Ex.P43: Statement of suspect/A17 Ex.P44: Statement of suspect/A18 Ex.P45: Statement of suspect/A19 Ex.P46: Statement of suspect/A20 Ex.P47: Statement of suspect/G.Durga kanth (A.21) Ex.P48:First Information Report dated 21-02-2016 Ex.P49: Rough sketch
For Defence: – NIL –
Material Objects Marked
M.O.1: Iron rope M.O.2: Tighter M.O.3: Iron pipe M.O.4: Fair chappals M.O.5: M.O.6: Three mobile phones instruments M.O.7: M.O.8:
M.O.9: Tipper vehicle bearing Reg. No.AP 05N U 4399 M.O.10: Chevrolet Car bearing Reg. No. AP 20 W 9666 M.O.11: Iron rod M.O.12: Plastic pipe 21
M.O.13: two sticks M.O.14:
PASJ,TPT
FAC ASJ,SKHT
Copies to: 1 The Hon’ble Registrar (Judicial), Hon'ble High Court of A.P., Amaravathi through the Hon'ble Prl. District & Sessions Judge, Chittoor 2 The Hon'ble Prl. District & Sessions Judge, Chittoor 3 The Additional Judicial Magistrate of I Class, Srikalahasti. 4 The Superintendent of Police, Tirupati 5 The Director of Prosecution, Amaravathi 6 The Additional Public Prosecutor, Tirupati. 7 The Inspector of Police, Renigunta Rural Circle, Srikalahasti.