Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 293 (AP)

Mohd. Omar Khan v. State Of A. P.

2005-03-28

G.YETHIRAJULU

body2005
G. YETHIRAJULU, J. ( 1 ) CRIMINAL Appeal no. 1092 of 2002 was preferred by A2 and criminal Appeal No. 1150 of 2004 was preferred by A3 against the judgment of the Assistant Sessions Judge, Sangareddy, medak District dated 5-8-2002 in S. C. No. 21 of 2002. ( 2 ) THE appellants and four others were charged for the offence under Section 395 IPC for allegedly committing theft of gold ornaments worth Rs. 25,000/- and cash of Rs. 10,000/- from the house of PW1 during the night of 1/2-9-2001 at 0030 hours. The appellants and other accused denied the charges and claimed for trial. The prosecution in order to prove the guilt of the appellants and other accused examined pws. 1 to 17 and marked Exs. P1 to P12 and MOs. 1 to 3. The learned Assistant sessions Judge after considering the above evidence found all the accused guilty of the charge under Section 395 IPC and sentenced each of them to undergo rigorous imprisonment for seven (7) years and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for three months. The appellants being aggrieved by the judgment of the learned Assistant Sessions Judge, sangareddy dated 5-8-2002 preferred these appeals challenging its legality and validity. ( 3 ) THE appellants and other accused alleged to have entered the house of PW1 at 0030 hours on 2-9-2001 and committed theft of gold ornaments worth Rs. 25,000/- and cash of Rs. 10,000/- and fled away with the booty. PW1 gave a complaint to the police mentioning that some unknown persons committed dacoity in his house. It was registered as a crime and the concerned police investigated the case. During the investigation they alleged to have arrested all the accused and, on the information given by the accused during interrogation, mos. 2 and 3-gold ornaments were said to be recovered. The Trial Court after holding that even though the number of accused who entered the house of PW1 is not tallied, though the identification parade to identify the culprits was not conducted, there is evidence of PWs. 7 and 9 regarding the confessional statements given by all the accused and the consequential recovery, therefore, all the accused are liable to be convicted for the offence under Section 395 ipc. 7 and 9 regarding the confessional statements given by all the accused and the consequential recovery, therefore, all the accused are liable to be convicted for the offence under Section 395 ipc. ( 4 ) THE learned Counsel for the appellants submitted that the appellants were unknown persons to PW1 and according to the evidence of PW1 the culprits have covered their faces with hand kerchiefs, therefore, there was no possibility for PW1 to identify as to who committed the offence by entering into his house, therefore, the appellants are entitled for acquittal by extending the benefit of doubt . In support of his contention, the learned Counsel relied on a judgment of this Court in K. Murali v. State of A. P. , 2001 (1) ALD (Crl.) 845 (AP), wherein a learned Single Judge of this Court held that when there was a recovery of articles of theft from the accused in the absence of description of stolen articles in the FIR, the conviction basing on the identification of the accused by PW1 about more than three months after the incident in the absence of test identification parade of articles, cannot sustain. ( 5 ) IN Wakil Singh v. State of Bihar, air 1981 SC 1392 , the Supreme Court held that when none of the prosecution witnesses gave any description or identification marks such as stature of dacoits, whether fat or thin or fair or black in colour etc. , in their statements or in the oral evidence given before the Court, the conviction cannot be based only on identification of dacoits by a single witness. ( 6 ) IN Kanan v. State of Kerala, AIR 1979 SC 1127 , the Supreme Court observed as follows: where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observations. The idea of holding test identification parade under Section 9 of the evidence Act is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no test identification parade is held, then it will be wholly unsafe to rely his bare testimony regarding the identification of an accused for the first time in Court. If no test identification parade is held, then it will be wholly unsafe to rely his bare testimony regarding the identification of an accused for the first time in Court. ( 7 ) EX. P1 is the complaint given by p. W. 1 to the police. PW1 has not given any descriptive particulars of the assailants in Ex. Pl except mentioning that the assailants have covered their faces with kerchiefs. The record does not disclose that the Investigation Officer gave a requisition to the Judicial Magistrate to conduct the test identification parade of the accused. PW14, the Investigating Officer also stated that the test identification parade of the accused was not conducted. Had PW1 expressed his readiness to identify the culprits, PW14 ought to have made necessary arrangements for conducting test identification parade of the culprits through a Judicial Magistrate. The gold ornaments said to be recovered from the culprits were also not identified through any test identification parade of articles. The material placed by the prosecution disclosed that the witnesses identified the accused as well as the ornaments during the course of trial before the Court. There was no proper explanation from the prosecution as to how the witnesses could identify the accused in the Court without giving any identification features of the assailants to any person, including the Investigation Officer who recorded their statements. The arrest of the appellants was also said to be about 1 months after the commission of the offence. The Trial Court convicted the accused by relying on the evidence of PWs. 7 and 9. PW7 has only stated that A1 and A2 visited several times to his hotel prior to the incident and they have stopped visiting his hotel after the incident. He further deposed that he stated before the police that he has suspicion over A1 and A2. PW9 deposed that he had given Rs. 10,000/- to Al by keeping MOs. 2 and 3 under pledge. The police have recovered those articles from him. The evidence of PWs. 7 and 9 is not sufficient to convict the accused. I am therefore inclined to set aside the conviction and sentence of the appellants. ( 8 ) IN the results, the appeals are allowed. The conviction and sentence of imprisonment imposed by the Trial Court against the appellants for the offence under section 395 IPC are set aside. 7 and 9 is not sufficient to convict the accused. I am therefore inclined to set aside the conviction and sentence of the appellants. ( 8 ) IN the results, the appeals are allowed. The conviction and sentence of imprisonment imposed by the Trial Court against the appellants for the offence under section 395 IPC are set aside. They shall be set at liberty forthwith, if they are in jail and are not required in any other crime.