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Andhra High Court · body

2003 DIGILAW 1109 (AP)

Shaik Khursheed v. State Of A. P.

2003-09-02

K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THE appeal is Directed against the judgment in Sessions Case No. 19 of 1998 on the file of IV Additional metropolitan Sessions Judge, Hyderabad, dated 8-3-2000, convicting the AS-appellant for the offence under Section 342 I. P. C. and sentencing him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. He was also convicted under Section 392 IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 500/-, in default, to undergo simple imprisonment for a period of one month. The sentences have been directed to run concurrently. ( 2 ) THE Inspector of Police, City Crime station, Detective Department, Hyderabad, filed a charge sheet before XXI Metropolitan sessions Judge, Hyderabad, against six accused alleging that on 20-9-1996 at about 11. 00 p. m. , while P. W. 1 was running STD booth-cum-Xerox Center at Nagarjuna nagar, Tarnaka, a Maruti Van came and stopped there and four persons entered into the shop. They threatened him and took away the Xerox machine and cash of rs. 2,500/- from the cash box after confining him in the cabin room. They also disconnected the telephone wire while scuttling away from the scene of occurrence. Thereafter P. W. I lodged Ex. Pl report with the police. The police registered a case under sections 342 and 392 of IPC and sent copies of the FIR to all concerned. During the course of investigation, PW11 arrested all the accused on the intervening night of 9-10-1997 at Nacharam, Malkajgiri Basing on the confessional statement given by Al, xerox Machine-M. O. l was seized from the house of the 1st accused. P. W. 6 conducted test Identification Parade in respect of all the accused and in that Test Identification parade, P. W. I identified A3 (present appellant) as the person who came to his shop on the date of accident along with others and after completion of investigation, the police filed the charge-sheet. P. W. 6 conducted test Identification Parade in respect of all the accused and in that Test Identification parade, P. W. I identified A3 (present appellant) as the person who came to his shop on the date of accident along with others and after completion of investigation, the police filed the charge-sheet. ( 3 ) ON behalf of the prosecution, 11 witnesses were examined and 10 documents were marked, besides the case property m. O. I. The Trial Court after appreciating the evidence on record believed the evidence of P. W. I and convicted and sentenced the appellant-accused No. 3 as aforesaid. The trial Court found the other accused not guilty of the charges levelled against them and accordingly they were acquitted. It is as against the said conviction and sentence A3-appellant filed present appeal questioning the legality and correctness thereof. ( 4 ) THE learned Counsel for the appellant contended that nearly after one year of the incident the identification parade was conducted, therefore it would not be possible for P. W. I to identify the Accused no. 3 in the Test Identification Parade, particularly because P. W. I did not give descriptive particulars of the appellant, by virtue of which he could identify him one year later before the Magistrate and that the photograph of the accused had been shown to him before P. W. 6 conducted test Identification Parade, and that no theft articles were recovered from the possession of the appellant, and therefore he prays to set aside the conviction and sentence recorded against the appellant. ( 5 ) ON the other hand, the Public prosecutor contended that even though, p. W. 1 did not give descriptive particulars in ex. Pl, he gave the particulars when he was examined by the police under Section 161 (3) cr. P. C. , and that because of the considerable striking features of A3, P. W. 1 could be in a position to identify A3 in the Test identification Parade and there is nothing unusual for P. W. I to identify the appellant, and therefore there are no grounds to interfere with the conviction and sentence recorded by the lower Court. ( 6 ) THE case of the prosecution is that on 20-9-1996 at about 11. ( 6 ) THE case of the prosecution is that on 20-9-1996 at about 11. 00 p. m. , while p. W. I was present in the shop i. e. , STD booth-cum-Xerox Center, some unknown persons entered into the shop and forcibly took away the Xerox machine and cash of Rs. 2,500/ -. It is not in dispute that the wife of P. W. 2 purchased the said machine after obtaining a loan from PMRY scheme in the year 1996. The fact that p. W. I was running STD booth-cum-Xerox center is not in dispute. It is not specifically denied or disputed in the cross-examination that no offence of this nature has taken place at the shop of P. W. I. Immediately after the incident, P. W. I also informed the committing of theft of Xerox machine to p. W. 3 who is his neighbour. On the next day at about 1. 00 a. m. , P. W. I lodged a report to the police. ( 7 ) A perusal of the record shows that three persons entered into the shop of P. W. I on the date of incident, and committed theft of Xerox Machine and the cash of Rs. 2,500/ -. The earliest version is completely in corroboration with the evidence of P. W. I with regard to the committing theft of Rs. 2,500/- and Xerox machine-M. O. 1. ( 8 ) NOW, it has to be seen as to who has committed theft of Xerox machine and cash? ( 9 ) THE lower Court mainly relied upon the evidence of P. W. I and came to the conclusion that the appellant-Accused no. 3 was one of the assailants who came to his shop and he was duly identified before the Magistrate when the Magistrate conducted Test Identification Parade. The incident in question had taken place on 20-9-1996. All the accused were arrested on the intervening night of 9-7-1997. Basing on the requisition given by the police, P. W. 6 conducted a Test Identification Parade in the Central Jail. In the Central Jail, P. W. I identified A3 as one of the persons who trespassed into the STD booth-cum-Xerox center and committed theft of Xerox machine and cash. All the accused were arrested on the intervening night of 9-7-1997. Basing on the requisition given by the police, P. W. 6 conducted a Test Identification Parade in the Central Jail. In the Central Jail, P. W. I identified A3 as one of the persons who trespassed into the STD booth-cum-Xerox center and committed theft of Xerox machine and cash. Admittedly, A3-appellant was not previously known to P. W. I and perhaps that is the reason why the police gave a requisition to the Magistrate to hold a Test Identification Parade. In the Test identification Parade also P. W. I did not give any descriptive particulars of the accused No. 3-appellant. So also, no descriptive particulars were furnished in the earliest report given by him. Though P. W. 1 admitted that he gave descriptive particulars of the appellant when he was examined by the police, after lapse of one year, PW1 had to identify the appellant. Therefore, the identification of the appellant assumes importance. ( 10 ) IT is very difficult for a person to identify the assailants who had an opportunity to see them for a few minutes at an odd hour, and to recollect the features of the accused after lapse of one year, unless there were considerable striking features of the assailants, which could be remembered. P. W. 1 did not give in Ex. Pl such features. Even when he was examined before the trial Court, he has not given any descriptive particulars of the assailants. He has not given any reason how he could be in a position to identify appellant-accused No. 3 one year later. It is not the case of P. W. I that because of some striking features of the appellant, he could be in a position to recollect the same and identify the appellant even after a lapse of long time. No doubt, the Test Identification Proceedings are not substantive evidence, but are only part of investigation to know the actual assailants. But, at the same time it is expected from P. W. 1 to give some reasons as to how he could be in a position to identify the accused. Those reasons are lacking in this case. ( 11 ) THE case of the accused-appellant is that his photographs had been shown to the witness before conducting the Test identification Parade. That appears quite probable. Those reasons are lacking in this case. ( 11 ) THE case of the accused-appellant is that his photographs had been shown to the witness before conducting the Test identification Parade. That appears quite probable. Perhaps that is the reason why p. W. I could identify the appellant in the test Identification Parade conducted by p. W. 6. Except identification of appellant in the Court for the first time, there is no other evidence to connect the appellant with the offence. No incriminating materia was seized from the possession of this appellant immediately after the arrest of the accused. He has not given any confessiona statement leading to recovery of any articles. So, in these circumstances, it is highly undesirable to place an implicit reliance on the evidence of PW1, who identified the appellant after lapse of one year from the date of incident. Of course, one may identify an unknown person after one year, if he has got any considered striking features or the features which have been imprinted in his mind. There were no such identification features or such other marks of the appellant which could enable P. W. 1 to recollect the same. So, in the absence of any material, this Court is of the considered opinion that it may not be possible for p. W. 1 to identify the appellant after lapse of one year. If the evidence of P. W. 1 is eschewed, there is absolutely no evidence to connect him with the crime. the lower court has not considered this aspect of the case. ( 12 ) HENCE, the conviction and sentence against the appellant is set aside. The appeal is allowed and the appellant-accused No. 3 is acquitted of the offences under Sections 342 and 392 IPC. Fine amount, if any, paid by the appellant-accused No. 3 shall be return to him.