Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 1508 (AP)

GUNDLA RAMESH @ GOLLA RAMESH v. State Of A. P.

2002-12-23

T.CH.SURYA RAO

body2002
T. SURYA RAO, J. ( 1 ) THE revision petitioner stands convicted for the offence punishable under Section 395 of the Indian Penal Code ( the IPC for brevity) and sentenced to suffer rigorous imprisonment for six years and further sentenced to pay a fine of rs. 50/- and in default to suffer simple imprisonment for one month by the learned principal Assistant Sessions Judge, Warangal, by his Judgment dated 5. 8. 1997 passed in s. C. No. 57 of 1997. On appeal, the learned ii Additional Sessions Judge, Warangal, in criminal Appeal No. 106 of 1997 confirmed the said conviction and sentence by his judgment dated 16. 05. 2000. ( 2 ) THE revision petitioner is A. 3 in the case. He along with A. 1 was tried for the offence punishable under Section 395 of the IPC. The gravamen of the charge against him was that he, A. 1, along with four others on the intervening night of 07/08. 12. 1993 at Ganturpally village committed dacoity in the house of Kancherlakunta Peddi reddy and decamped with valuables and thereby committed the offence punishable under Section 395 of the IPC. ( 3 ) IN order to prove the said charge, the prosecution examined as many as 14 witnesses and got Exs. P. 1 to P. 10 and M. Os. 1 to 9 marked. None was examined on the side of the accused and no documents were got marked. ( 4 ) THE plea of the revision petitioner was one of total denial. Of the 14 witnesses, p. Ws. 1 to 7 are the persons from whom the properties were robbed. P. W. 8 is the mediator for observation of scene of offence. P. W. 9 is the mediator for the recoveries. P. W. 10 is another mediator for the recoveries but he has not supported the case of the prosecution. P. W. 11 is another mediator for the recovery of the valuables from A. 1 in the Police Station. PW12 is the person with whom some of the items are said to have been pledged by the accused. P. W. 13 is the Munsif Magistrate who conducted the test identification parade and P. W. 14 is the Investigating Officer. ( 5 ) ON appreciation of the oral and documentary evidence, the trial Court was of the view that the seizure of material objects-M. Os. P. W. 13 is the Munsif Magistrate who conducted the test identification parade and P. W. 14 is the Investigating Officer. ( 5 ) ON appreciation of the oral and documentary evidence, the trial Court was of the view that the seizure of material objects-M. Os. l to 9 specifically attributed to A. 1 and A. 3 was not clearly established by the prosecution. However, placing reliance upon the testimony of P. Ws. 1, 4 and 5, the learned Assistant Sessions Judge was of the view that since those witnesses could identify the revision petitioner and a. 1 during the test identification parade as well as during their evidence in the Court on oath, their presence at the time of the offence was proved and with that view, he convicted the revision petitioner and another. As aforesaid, the appellate Court confirmed the same. ( 6 ) IT is obvious, therefore, that only on the basis of the identification of the revision petitioner by the witnesses, he was found guilty by the trial Court. The learned counsel appearing for the revision petitioner seeks to assail the said finding on the premise that inasmuch as the identification parade was conducted 8 months after the offence and as the witnesses failed to give their descriptive particulars in their previous statements, their identification of the revision petitioner in test identification parade as well as in the Court looses every efficacy and, therefore, the conviction of the revision petitioner is bad. ( 7 ) THE only point that arises for my determination in this revision case is whether the identification of the revision petitioner by the witnesses-P. Ws. l, 4, and 5 can safely be believed or not. ( 8 ) AS can be seen from the evidence of P. W. 1, the offence took place at about 10. 30 p. m. , and at that time along with him, his wife-P. W. 2 and his niece-P. W. 3 were present. His evidence further shows that about six culprits armed with axes and sticks came to their house, forcibly entered into the house and threatened to stab and kill and robbed them of the gold jewellery. It further shows that the culprits beat him on his right shoulder, on his stomach, on his back and on his left leg. His evidence further shows that about six culprits armed with axes and sticks came to their house, forcibly entered into the house and threatened to stab and kill and robbed them of the gold jewellery. It further shows that the culprits beat him on his right shoulder, on his stomach, on his back and on his left leg. Furthermore, they dragged him outside the house and took him to the house of the neighbour whereat he was made to call the neighbour and when the neighbour opened the doors they again committed dacoity in that house. The witness claimed in his evidence that he could identify them if they were shown to him. One significant fact discernible from his evidence is that the culprits tied kerchiefs to their mouths at the time of the offence. The testimony of this witness was corroborated by the evidence of P. Ws. 2 and 3-his wife and niece. ( 9 ) COMING to the evidence of P. W. 4, he deposed that when P. W. I called him he opened the doors when the culprits gained entry into his house and robbed him of the gold jewellery. He further deposed that the culprits beat him and other inmates and went away. He too identified the revision petitioner and another in the open Court as having been present among the culprits at the time of the offence. The same is the evidence of P. W. 5. ( 10 ) IT is obvious from the testimoney of these three witnesses that the offence in this case was perpetrated on the intervening night of 7-/8. 12. 1993. As can be seen from the evidence of P. W. 14, the revision petitioner was arrested on 27. 06. 1994 by the Inspector of Police, CCS, Warangal and on giving a requisition the Investigating officer obtained warrant against the revision petitioner from the Court and got him remanded in this case. On a requisition given by P. W. 14, P. W. 13 conducted the test identification parade on 23. 8. 1994. It is obvious thus that nearly 8 months and 15 days after the offence, the test identification parade was conducted wherein p. Ws. 1, 4, and 5 were said to have identified the revision petitioner. There has been no gainsaying that the revision petitioner and other culprits were total strangers to the witnesses. 8. 1994. It is obvious thus that nearly 8 months and 15 days after the offence, the test identification parade was conducted wherein p. Ws. 1, 4, and 5 were said to have identified the revision petitioner. There has been no gainsaying that the revision petitioner and other culprits were total strangers to the witnesses. As contended by the learned Counsel appearing for the revision petitioner, no descriptive particulars have been given either in the First information Report or in the previous statements of the witnesses recorded by the Investigating Officer. The fact remains that these witnesses could identify the revision petitioner at the test identification parade and during the course of the trial before the Court. The first identification was nearly after 8 1/2 months. ( 11 ) WITH this available material on record, can it be said that the testimony of these three witnesses-P. Ws. l, 4, and 5 could be believed or not. In this regard, the learned Counsel appearing for the revision petitioner seeks to place reliance upon the judgments of the Apex Court in Yeshwant v. Slate of Maharashtra, AIR 1973 SC 337 ; mohd. Abdul Hafeez v. Slate of A. P. , air 1983 SC 367 ; Subash and Shiv Shankar v. State of U. P. , AIR 1987 SC 1222 ; and rajesh Govind Jagesha v. State of maharashtra, AIR 2000 SC 160 = 2000 (1) ald (Crl.) 38 (SC ). ( 12 ) IN the first judgment, on account of the infirmities present in the evidence of the witnesses, more particularly having regard to the fact that the Police made to sit the accused outside the Court of the Magistrate where the witnesses were waiting before the identification parade began and the failure of the magistrate in taking precautions to see other similar bearded men joined the parade; the Apex Court disbelieved the test identification. ( 13 ) IN the second case, no test identification parade was conducted. It is only for the first time, the victim identified the culprit when he came to the Court to give evidence nearly after 4 months of the occurrence. Under such circumstances, the apex Court was of the view that such identification in the Court in the circumstances of that case would hardly furnish any evidence. It is only for the first time, the victim identified the culprit when he came to the Court to give evidence nearly after 4 months of the occurrence. Under such circumstances, the apex Court was of the view that such identification in the Court in the circumstances of that case would hardly furnish any evidence. ( 14 ) IN the third case, the test identification parade was conducted three weeks after the arrest of the appellant and there had been no explanation for the delay in holding the test identification parade. That apart, there are other infirmities in the case, that the name of the appellant could come out when another culprit was questioned in jail on 07. 04. 1971; and that the appellant was an employee in the office of the Central Excise Department at Bareilly and despite the same the Investigating officer failed to trace him and arrest him for nearly two months. The offence in that case took place on 12. 03. 1971. Having regard to the gap and the other two infirmities as pointed out, the Apex Court was of the view that benefit of doubt should be given to the appellant. ( 15 ) IN the last case, having regard to the fact that when the appellant was arrested on 20. 1. 1993 and the test identification parade was held on 13. 2. 1993 and the other fact that the appellant was having beard and long hair and no other person having such beard and long hair were included in the test identification parade, the Apex Court was of the view that it was unfair and, therefore, the appellant was entitled to benefit of doubt. ( 16 ) IT is obvious from the above discussion that with reference to the facts which are peculiar to those cases, it came to be rendered by the Apex Court that such identification of the culprits could not be relied upon. ( 17 ) RECENTLY the Apex Court in Abdul Waheed Khan v. State of A. P. , (2002) 7 scc 175 = 2002 (2) ALD (Crl.) 509 (SC), held that the delay in holding the second test identification parade by itself would not fatal to the prosecution case provided the same was duly explained by the prosecution showing the circumstances in which it was beyond its control to conduct the parade earlier. ( 18 ) IN another recent case in Dana Yadav v. State of Bihar, (2002) 7 SCC 295 = 2002 (2) ALD (Cri.) 729 (SC), the Apex court was of the view that even if the test identification parade was not held and the witnesses identified the accused for the first time before the Court, the evidence regarding identification in Court did not become inadmissible and could not be discarded on the ground of not being preceded by test identification parade, when the Court found the same to be trustworthy. The Apex Court further held that the evidence of identification of accused before the Court should not ordinarily form the basis of conviction unless corroborated by previous identification in test identification parade or any other evidence though there are exceptions to this rule. ( 19 ) THEREFORE, it is obvious that holding test identification parade is not a sine qua non. Each case depends upon its own facts and identification of the culprits by the witnesses in the Court should be appreciated by the Court and if the Court finds it trustworthy , it can safely base its conclusion thereon. If there are any other circumstances attendant, according to the facts of that case, which render support to the identification of the culprits by the witnesses in the Court, notwithstanding the absence of test identification parade preceding the identification of the accused by the witnesses in the Court, the Court can safely place reliance upon such identification. It all depends upon the witness s capacity to perceive the tilings, assimilate them and his capacity to recapitulate and reproduce at the time of his evidence before the Court. This capacity, which purely based upon mental faculties of the witness, certainly differs from person to person. Therefore, there cannot be any uniform principle in this regard with reference to which the testimony of the witnesses can be appreciated as regards the identification. It becomes obligation of the Court to appreciate the evidence of the witness who claims to have identified the culprit in the court independently having regard to his capacity to identify and his opportunity earlier to see the culprit and whether there are any other attendant circumstances emanating from the record which go in support of the testimony of the witnesses, be it a previous test identification parade or the other circumstances. ( 20 ) THEREFORE, the contention of the learned Counsel appearing for the revision petitioner that since the witnesses failed to give descriptive particulars of the revision petitoiner in their previous statements, the test identification parade looses its significance merits no consideration. Here is a case where P. W. I was beaten by the culprits, he was dragged out of his house and was taken to another house whereat he was made to call the inmates of that house and they again committed dacoity in that house. Therefore, the witness obviously had sufficient opportunity to watch the culprits. The fact that the culprits covered their mouths with kerchiefs would not have a significant bearing when all other facial features are exposed. Having regard to the fact that the witnesses had sufficient opportunity to observe the culprits and it is a case where series of dacoits have been committed in the same night in the same village and as many as three witnesses could come and identify the culprits in the test identification parade held preceding their date of evidence and the second time they could identify them in the open Court, appreciation of the evidence of these three witnesses-P. Ws. 1, 4 and 5 by the trial Court and concurred by the appellate Court cannot be held to be in any manner infirm. In that view of the matter, I see no illegality or material irregularity or any impropriety that has been committed by both the Courts below in the matter of appreciation of evidence of p. Ws. 1, 4 and 5. Although in this case the prosecution failed to establish the recoveries but the oral evidence of P. Ws. l, 4 and 5 as discussed herein above can safely be relied upon. ( 21 ) FOR the foregoing reasons, there is nothing to interfere with the conviction and sentence passed against the revision petitioner. The Criminal Revision Case, therefore, fails and is dismissed, and the judgment dated 5. 8. 1997 passed by the learned Principal Assistant Sessions Judge, warangal, in S. C. No. 57 of 1997, as confirmed by the learned II Additional sessions Judge, Warangal, by his Judgment dated 16. 5. 2000 in Criminal Appeal no. 106 of 1997, is upheld. The Criminal Revision Case, therefore, fails and is dismissed, and the judgment dated 5. 8. 1997 passed by the learned Principal Assistant Sessions Judge, warangal, in S. C. No. 57 of 1997, as confirmed by the learned II Additional sessions Judge, Warangal, by his Judgment dated 16. 5. 2000 in Criminal Appeal no. 106 of 1997, is upheld. Consequently, the bail bond of the revision petitioner stands cancelled and he is directed to surrender before the Court below forth with to serve out the sentence imposed on him.