Criminal Appeal No. 560 of 2003 · High Court · 2009

Judgment

1. The appellants in Criminal Appeal No.560 of 2003 are A3, A.4 and A.6 in Sessions Case No.3 of 2000 on the file of the II Additional Sessions Judge, Warangal, and the appellant Criminal Appeal No.2622 of 2004 is A.2 in Sessions Case No.3 of 2003 before the said Court. They filed the respective appeals under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the judgments dated 31.5.2003 and 22.12.2004 in the respective Sessions Cases, whereunder and whereby they were convicted of the offence punishable under Section 395 I.P.C. and sentenced to undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs.1,000/- each in default to suffer simple imprisonment for a period of four months.

2. The brief facts that are necessary for disposal of this Criminal Appeal may be stated as follows: On 18.1.1998 at about 9.30 P.M., P.Ws. 1 to 5 and their children were in the house of P.W.1. After hearing knocking sound, P.W.5 opened the door. Immediately, five unknown persons entered into the house, holding pistol and knives. They informed them that they are naxalites and demanded Rs.1.00 lakh as party fund. Then, P.W.1 told that he had no money. The assailants threatened them to kill, and took P.Ws. 1 and 2 to their bed room, got opened their almirah and took cash of Rs.13,000/-. They also got opened another almirah and took 4 gold ear studs and two gold ear matis of P.W.2. Again, the assailants took one gold gopithadu of P.W.2, one gold gopithadu, gold ring and gold gundlu of P.W.3. The assailants have also taken gold gopithadu and 4 bangles of P.W.4 and while leaving the house, the assailants put up bolt from outside the door. They also cut the telephone wire while leaving the house. Due to fear, no report was given on that day. On 21.1.1998, P.W.1 gave Ex.P1-report in Subedari police station, basing on which P.W.12 registered case in crime no.18 of 1998 for the offences under Sections 395, 412 I.P.C. and 27 of the Arms Act against unknown persons, under Ex.P9-F.I.R.. On 13.4.1998, A.4 was arrested by P.W.18 at the shop of P.W.7 and recorded his confession, and basing on the same, P.W.18 arrested A.1, A.2, A.3, A.5 and A.6, recorded their statement and recovered gold ornaments. At the instance of A.4, M.O.1-four bangles recovered under cover of panchanama. On

30.5.1998, P.W.10-I Additional Judicial Magistrate of First Class conducted test identification parade to identify A.2 to A4, wherein P.Ws. 1 to 4 identified A.2 to A.4 while P.W.5 identified A.2 and A.4. Ex.P5 is the test identification parade proceedings in respect of A.2 to A.4. On 20.6.1998, P.W.10 conducted test identification proceedings in respect of A.1 to A.6, wherein PWs. 2 and 4 identified A.1 and A.6, while P.Ws. 1 and 3 identified A.1 only. Ex.P7 is the test identification proceedings. P.W.18-Circle Inspector of Police recorded statements of P.Ws. 6 and 7 on 13.4.1998. Police, after completion of investigation, laid the charge sheet.

3. Originally, the case was taken on file as Sessions Case No.583 of 1999 and made over to the court of II Additional Assistant Sessions Judge, Warangal, and the learned Judge framed the following charges against the accused: “Firstly, that you Nos. 1 to 6, on 18.1.1998 evening at about 9.30 p.m. at Balasamudram, committed theft of gold ornaments and net cash of Rs.13,000/- from the house of L.W.1 and also committed theft of gold ornaments from L.Ws. 2 to 4 all w/r 1 lakh, and thereby committed an offence punishable under Section 395 of the Indian Penal Code, and within my cognizance. Secondly, that you Nos. 1 to 6, on the aforesaid date, time and place mentioned had in your possession fire arm and knife with intent to use the same for an unlawful purpose to wit L.W.1 and thereby committed an offence punishable under Section 27 of the Arms Act, 1959 and within my cognizance. Thirdly, that you no.7 on the aforesaid date, time and place mentioned dishonestly retained stolen property belonging to L.W.1, L.W.2 to 4, knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity, and thereby committed an offence punishable under Section 412 of the Indian Penal Code, and within my cognizance.” When the charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried.

4. Thereafter, the case was transferred to the Court of the II Additional Sessions Judge, Warangal, being the designated court to try the offences of dacoities and robberies, as per G.O. Rt.No.479, Law Department, dated

9.8.1996 and as per the order of the Sessions Judge, Warangal, dated 31.12.1999, for disposal according to law, and renumbered as Sessions Case No.3 of 2000.

5. During the course of trial, A.1 died and the case against him was abated. Since A.2 and A.7 jumped bail and were absconding, case against them was split up as Sessions Case No.3 of 2003.

6. In Sessions Case No.3 of 2000, to substantiate its case, the prosecution examined P.Ws. 1 to 19 and got marked Exs.P1 to P16, besides case properties M.Os. 1 to 8. No oral or documentary evidence was adduced on behalf of the accused.

7. In Sessions Case No.3 of 2003, to substantiate its case, the prosecution examined P.Ws. 1 to 19 and got marked Exs.P1 to 16, besides case properties M.Os. 1 to 8 . No oral or documentary evidence was adduced on behalf of the accused.

8. When the accused were examined under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing in the evidence of prosecution witnesses, they denied the same.

9. The trial Court, accepting the evidence of P.Ws. 1 to 5, 8, 9, 16 and 17, found the appellants/A.2, A.3, A.4 and A.6 guilty of the offence under Section 395 I.P.C., and accordingly convicted and sentenced them as stated supra, while acquitting A.5 and A.7. Challenging the same, the present appeals are preferred by appellants/A.2, A.3, A.4 and A.6.

10. Now the point for determination is whether the prosecution proved its case beyond reasonable doubt for the offence under Section 395 I.P.C. against appellants ?

11. The learned counsel appearing for the appellants contended that, descriptive particulars of the assailants are not mentioned either in F.I.R. or when the witnesses were examined by police during the course of investigation; that there was a delay of 3 days in lodging the complaint; that there was a delay in conducting test identification parade; that, no specific overt-acts are attributed against the appellants; that, non-examination of the investigating officer, who recorded the statements of material witnesses, is fatal to the case of prosecution; that, the evidence of P.W.18 would go to show that, except M.O.1, other material objects 2 to 8, do not pertain to this case, and hence, the appellants are entitled to the benefit of doubt. Hence, he prays to set aside the conviction and sentence recorded against the appellants.

12. On the other hand, the learned counsel representing the Public Prosecutor contended that the evidence of P.Ws.1 to 5 is very clear that the assailants were members of dacoity participated in commission of the offence; that, the evidence of P.Ws. 6 and 7 coupled with the evidence of P.Ws. 17 and 18 would clearly go to show that M.Os. 1 to 8 have been seized from the possession of the appellants; that, the appellants have not claimed the property as belonged to them; that, after an elaborate consideration of the evidence on record, the trial court rightly found the appellants guilty and there are no grounds to interfere with the same. Hence, she prays to dismiss the criminal appeals.

13. The incident is alleged to have taken place on

18.1.1998 at about 9.30 PM. It is alleged that some assailants committed theft of gold ornaments at the point of pistols in the house of P.W.1. The descriptive particulars of the gold ornaments have been clearly stated in the F.I.R. No doubt, there was a delay in lodging the complaint. Some times, the delay in lodging the complaint may result in embezzlement or improvements. When the evidence of P.Ws. 1, 2 and 5 would clearly go to show that some unknown assailants committed theft of M.Os. 1 to 8 from their house at 9.30 P.M. on 18.1.1998, that fact has not been denied or disputed even by the accused. Therefore, even if there is a delay, it would not affect the case of prosecution. The reason given by P.W.1 for the delay in lodging the complaint is that due to fear and threats by the assailants posing themselves as naxalites, he could not give the report. Under these circumstances, the delay, if any, in lodging the F.I.R. need not be fatal to the case of prosecution.

14. The second contention of the learned counsel for the appellants is that the descriptive particulars of the assailants have not been stated either in F.I.R. or when the witnesses were examined under Section 161(3) Cr.P.C. and therefore the identification of the appellants by P.Ws. 1 to 5 for the first time in the court, is valueless. It is not as if P.Ws. 1 to 5 were sleeping in the house. As somebody knocked the door of his house, P.W.1 opened the door, and then the accused threatened them with knives and pistol and committed dacoity. The assailants were present in the house for quite a long time. Therefore, the physical features of the appellants must have been imprinted in the mind of P.Ws.1 to 5 so that they can recollect the same and identify the assailants even after lapse of long time. P.Ws. 1 to 5 should have been cross-examined as to how they could be in a position to identify the assailants when they are strangers to them. But, nothing has been suggested to these witnesses that it was impossible for them to identify the assailants. P.Ws. 1 to 5 have no grouse or enmity against the appellants so as to implicate them falsely leaving the real assailants, in view of the fact that a dacoity had taken place in the house of P.W.1 and in that dacoity gold ornaments, including M.Os. 1 to 8, have been committed theft. Therefore, when the assailants were present for a long time in the house, it is possible for P.Ws.1 to 5 to identify them.

15. Further, memory of P.Ws. 1 to 5 is tested by conducting test identification parade proceedings. All the appellants were identified by the witnesses. If really the witnesses want to perjure themselves, they could as well have identified all the accused as the persons who committed the robbery. P.Ws. 1 to 4 identified A.2 to A.4 and P.W.5 identified A.2 and A.4, in the test identification parade conducted by P.W.10 on 30.5.1998. Similarly, P.Ws. 2 and 4 identified A.1 and A.6 while P.Ws. 1 and 3 identified A.1, in the test identification parade conducted by P.W.10 on 20.6.1998. Therefore, identification of the appellants in the court, tested by the test identification parade proceedings under Exs.P5 and P7, cannot be doubted. Identification of the appellants by the witnesses is not shown to be highly improbable or unbelievable. That is the reason why the trial court rightly placed implicit reliance on the evidence of P.Ws. 1 to 5.

16. As regards the other contention raised by the learned counsel for the appellants viz. non-examination of the investigating officer, who examined the witnesses and recorded their statements, is concerned, admittedly, no material omissions or material contradictions which will go to the root of the prosecution case, are elicited during the course of cross-examination of witnesses. Therefore, non-examination of the investigating officer, who recorded statements of P.Ws. 1 to 5, is not at all fatal to the case of prosecution.

17. The other contention raised by the learned counsel for the appellants is that no specific overt-act is attributed against the appellants. But, this contention is untenable. When the appellants participated in commission of dacoity, the question of attributing specific overt-act may not arise, because the intention of the accused is to commit theft of valuables that may be found in the house. In this case, gold ornaments as well as cash of Rs.14,000/- were committed theft. When all the accused conjointly committed theft, there is no need for the prosecution to explain the specific overt-acts against each of the accused or the part played by each of them.

18. The other contention is that P.W.18 admitted that except M.O.1, the other properties viz. M.Os. 2 to 8, relate to crime no.22 of 1998, and hence the appellants are entitled to the benefit of doubt. Entire evidence of P.W.18 has to be looked into so as to find out the ring of truth. A stray admission of a witness alone cannot be taken as a circumstance to doubt the prosecution case. If the evidence of P.W.18 is to be read in its entirety, it leaves no doubt to conclude that M.Os. 1 to 8 have been seized the possession of the appellants and properties M.Os. 2 to 8 are relating to the present case. If the contention of the learned counsel for the appellants is to be accepted as correct, then there is no need for the investigating officer to request the mediators to conduct test identification parade in respect of the properties M.Os. 1 to 8. He categorically stated that, he conducted test identification parade for identification of the properties by the witnesses and the proceedings have been drafted by the mediators under Ex.P10. P.W.13 is the mediator. Therefore, the stray admission of P.W.18 on this aspect cannot be given much weight. The seizure of certain gold ornaments from the possession of the appellants is established from the evidence of P .W.18, 8 and 9.

19. The fact that M.Os. 1 to 8 belong to P.Ws. 1 to 5 is not in dispute. These properties were shown to have been seized from the possession of the appellants. The appellants have not claimed that these properties M.Os. 1 to 8 belong to them. Therefore, the presumption under Section 114 (a) of the Indian Evidence Act, 1872 can be drawn. If it is drawn, the presumption is that the appellants are either thieves or receivers of stolen properties. Of course, it is a rebuttable presumption. But, the appellants have not adduced any evidence to rebut the presumption under Section 114(a) of the Indian Evidence Act by preponderance of probabilities. After an elaborate consideration of the evidence on record, the trial court rightly placed reliance on the evidence of P.Ws. 1 to 5 with regard to theft of M.Os. 1 to 8, involvement of the appellants and the evidence of P.Ws. 8, 9 and 18 to show that these properties were seized from the possession of the appellants. Therefore, there are no grounds to interfere with the conviction recorded by the trial court.

20. With regard to sentence, 11 years elapsed from the date of commission of the offence. Sentence of imprisonment was suspended by this court at the time of admission of the appeals. It is stated by the learned counsel for the appellants that they were involved in only two cases, including this case, and in the other case, they were acquitted, and that the appellants have not involved in any other case similar to the present one, and that, wife and children of the appellants are depending on the earnings of the appellants. Considering these aspects, a lenient view can be taken with regard to the sentence of imprisonment.

21. In the result, the conviction recorded against the appellants/A3, A.4 and A.6 in Criminal Appeal No.560 of 2003, in the judgment dated 31.5.2003 in Sessions Case No.3 of 2000 on the file of the II Additional Sessions Judge, Warangal, and against the appellant/A.2 Criminal Appeal No.2622 of 2004, in the judgment dated

22.12.2004 in Sessions Case No.3 of 2003 on the file of the II Additional Sessions Judge, Warangal, is confirmed. But, the sentence of imprisonment imposed against the appellants in the respective judgments is reduced from rigorous imprisonment five years rigorous imprisonment for three years, while maintaining the fines and default sentences.

22. With the above modification in sentence, the Criminal Appeals are dismissed.

26.10.2009 DRK ---------------------- (K.C.Bhanu, J.) THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL Nos. 560 of 2003 and 2622 of 2004 Date: 26.10.2009 CRIMINAL APPEAL No.560 of 2003: Between: Konda Niranjan & others …Appellants And The State of A.P., rep. by the Public Prosecutor, High Court of A.P. CRIMINAL APPEAL No. 2622 of 2004: Between: Pallakonda Ramaswamy …Respondent And …Appellant The State of A.P., rep. by the Public Prosecutor, High Court of A.P. …Respondent THE HON’BLE SRI JUSTICE K.C.BHANU COMMON JUDGMENT IN CRIMINAL APPEAL Nos. 560 of 2003 & 2622 of 2004

26.10.2009