Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 1173 (AP)

Syed Turbuddin v. State of Andhra Pradesh

2007-11-30

GOPALA KRISHNA TAMADA

body2007
COMMON JUDGMENT :-The II Additional Metropolitan Sessions Judge, Hyderabad, tried the appellants in Criminal Appeal No.826 of 2000 and three others (A.3 to A.5) for the offence punishable under Section 395 of the Indian Penal Code, 1860 (IPC) and first appellant for the offence punishable under Section 25(1)(B)(b) of the Indian Arms Act in Sessions Case No.551 of 1995. Initially, case was registered against A.1 to A.5 and others, but as the other persons, were not apprehended as on the date of filing of the charge-sheet, the appellants and A.3 to A.5 were only tried. The trial Court, on an analysis of both ocular and documentary evidence, came to the conclusion that A3 to A5 are not guilty of the offence punishable under Section 395 IPC, and A 1 is not guilty of the offence punishable under Section 25(1)(B)(b) of the Indian Arms Act, however, A.1 and A.2 are guilty of the offence punishable under Section 392 IPC and accordingly by judgment dated 29.6.2000, convicted and sentenced them to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs.5,000/- each, in default, to suffer simple imprisonment for a period of one year. Questioning the said conviction, A1 and A2 preferred Criminal Appeal No.826 of 2000 and challenging the acquittal of A1 to A5 of the offence punishable under Section 395 IPC and Al of the offence punishable under Section 25(1)(B)(b) of the Indian Arms Act, the State preferred Criminal Appeal No.96 of 2005. 2. As these two appeals arise against the same judgment these two appeals are disposed of by this common judgment. 3. For the sake of convenience, the appellants in Crime No.826 of 2000 and the respondents in Criminal Appeal No.96 of 2005 are hereinafter referred to as 'the accused' . 4. 2. As these two appeals arise against the same judgment these two appeals are disposed of by this common judgment. 3. For the sake of convenience, the appellants in Crime No.826 of 2000 and the respondents in Criminal Appeal No.96 of 2005 are hereinafter referred to as 'the accused' . 4. The substance of the charges framed by the trial Court against the accused is that (1) on 31.1 0.1993 at 6.30 a.m., near Deccan Continental Hotel on Ministers Road, Secunderabad, all the accused committed dacoity worth Rs.25 lakhs (jewellary and cash of Rs.20,000/-) from one Rajan Kapoor, by forcibly stopping the auto rickshaw in which he was travelling, threatened him with a dagger and snatched the suitcase from him and fled away by scooter; (2) On the same day i.e., on 31.10.1993 and at the same time, A 1 was in possession of a dagger without having any valid licence or permit from the concerned officials. 5. The case of the prosecution is that one Rajan Kapoor, who was examined as P.W.1, is a gold and jewellary merchant and is a resident of Amruthsar, in Punjab State and he along with his brother and father are carrying on jewellary business in the name and style of G.C. Madan Mohan and Sons Jewellers, and they bring the jewellary made at Amruthsar to Hyderabad and sell the same either for cash or exchange the same with old jewellary equivalent to that of the price of the new jewellary. Whenever the old jewelry is handed over to them, they melt the same and make it into bangles and take them to Amruthsar from Hyderabad. During the course of the said business dealings, on 25.10.1993, P.W.1 came to Hyderabad with 1570 grams of gold jewellary for selling the same at Hyderabad, and stayed at Mayur Lodge near Mozamjahi Market. He could not sell the jewellary which he brought. On 30.10.1993, a customer, by name Meena Jewelers, gave 1750 grams of old jewellery to him for the purpose of making new jewellery of different designs and thus the said Meena Jewellers placed an order. As per the practice, he gave a voucher, noting down the details of the jewellery. Similarly, one Iqbal and Company, Jewellers in GuIzar House, Hyderabad, also handed over old jewellery of 745 grams and obtained voucher from P.W.1. As per the practice, he gave a voucher, noting down the details of the jewellery. Similarly, one Iqbal and Company, Jewellers in GuIzar House, Hyderabad, also handed over old jewellery of 745 grams and obtained voucher from P.W.1. Another jeweller by name Yousuf and Company, Char Khaman, gave old jewellery of 350 grams and obtained voucher from P.W.1. Likewise, Lal Chand Hatimal Jain Jewellers, Pot Market, Secunderabad, handed over old jewellery of 394 grams, and Tibarumal and Sons, Char Kaman, H yderabad, handed over old gold jewellery weighing 432.150 grams for the purpose of making new ornaments. Thus, he was in possession of huge quantity of gold and jewellery. As the purpose for which he visited Hyderabad was over, he wanted to leave Hyderabad on 31.1 0.1993 in the morning by flight and accordingly, he cleared the room rent, etc., and also informed the management. At 6.00, a.m., on 31.1 0.1993 P.W.1 left the hotel and when he was proceeding in an auto near Deccan Continental Hotel in the Ministers' Road, accused came on a scooter from behind the auto and stopped the scooter in front of the auto. Al got down from the scooter and abused the driver of the auto stating that he was driving the auto in a negligent manner, and so saying, he came to P.W.1 and snatched away the suitcase which was kept in front of him, for which, P.W.1 was stunned and immediately thereafter, he got down from the auto and ran towards the scooter and caught hold of the rod of the scooter to which the spare wheel would be attached. But as the said rod was pulled, the scooter fell to a side and the suitcase also fell on the other side of the road. When P.W.1 lifted the suitcase and started running across the road raising alarm, none came to his rescue. In the meanwhile, accused caught hold of the suitcase and again tried to snatch it from him, but as P.W.1 held the suitcase firmly, the said two persons could not snatch it. During the course of resistance, A1 gave a fist blow on his chest, caught hold of his shirt collar and pulled it. Thereafter, both of them pulled the suitcase from him and left on the scooter towards airport. Immediately, P.W.1 got into the auto and instructed P.W.2 to follow the scooter. During the course of resistance, A1 gave a fist blow on his chest, caught hold of his shirt collar and pulled it. Thereafter, both of them pulled the suitcase from him and left on the scooter towards airport. Immediately, P.W.1 got into the auto and instructed P.W.2 to follow the scooter. However, when the auto moved at a distance of 20 yards, it stopped due to some mechanical problem. In the meanwhile, the scooter and accused disappeared. P.W.1 engaged another auto and went to Ramagopalpet Police Station and gave EX.PI report to the police, on the basis of which the criminal law is set in motion. On the basis of Ex.P1 report, the Inspector of Police, Ramgopalpet Police Station (P.W.21) registered a case in Crime No.157 of 1993 for the offence punishable under Section 392 IPC and issued Ex.P27First Information Report to all the concerned. Immediately thereafter, P.W.21 along with P.W.1 visited the scene of offence, but he did not find any incriminating material at the scene of offence. He recorded the statement of P.W.1 under Section 161 of the Code of Criminal Procedure, 1973, and seized the shirt of P.W.1 in the presence of P.W.10 under the cover of Ex.P 28-Seizure Report. 6. Thereafter, the Inspector of Police, Central Crime Station, South Zone, Hyderabad, (P.W.27) took up further investigation. On 11.6.1995 he arrested accused at Gulzar Houz Suraj Market and found some stolen property in their possession. One gold necklace and one dagger, marked as M.Os.1 and 54, respectively, were seized from the possession of Al and two gold ornaments marked as M.Os.2 and 3 and one chetak scooter were seized from the possession of A2 in the presence of P.Ws.13 and 24. On a confession made by A 1 and A2, A3 was arrested at his house, and he produced M.Os.4 to 16 and they were seized in the presence of P.W.23 and another. On the confession made by A.3, A.4 was arrested at his house and a gold ring marked as M.Os.13 was seized from his possession. A.3 led the police and the mediators to the house of A5, where he was arrested and gold ornaments marked as M.Os.18 to 42 were seized from his possession in the presence of P.W.23 and another. On the confession made by A.3, A.4 was arrested at his house and a gold ring marked as M.Os.13 was seized from his possession. A.3 led the police and the mediators to the house of A5, where he was arrested and gold ornaments marked as M.Os.18 to 42 were seized from his possession in the presence of P.W.23 and another. Later, A.5 led the police and panchas to Gulzar Houz to the shop of P.W., where P.W.11 produced 298.300 grams of, gold kadas, marked as M.O.A.3, and the same was seized in the presence of P.W.23 and another. Then, A.3 led the police and mediators to the shop of P.W.12, where P.W.12 produced 17 gold bangles marked as M.O.A.4 and 11 rings and three gold chains, marked as M.O.A.5, and the same were seized under the cover of EX.P23. On the next day, A1 to A5 were produced before the Judicial Magistrate of First Class, and they were remanded to judicial custody. However, as the presence of A3 was required by the police for the purpose of further investigation, his custody was given to the police. On the strength of the said recoveries and as there are five accused, P.W.27 altered the section of law from Section 392 IPC to Section 395 IPC, and issued altered First Inforn1ation Report marked as EX.P36. On 19.6.1995 P.W.14, the Sub-Inspector of Police, Central Crime Station, Hyderabad, went to State Bank of Hyderabad, Maredpalli Branch, and met P.W.16, the Bank Manager, and found the pledged articles i.e., M.Os.48 to 53 as stolen property in this case. On the information that the stolen property is recovered, P.W.1 came to Hyderabad and on 24.6.1995 in a Test Identification Parade conducted in the presence of P.W.15, i.e., the learned II Additional Metropolitan Magistrate, Hyderabad, he and P.W.2, the driver of the auto, identified A.1 and A.2 After completion of investigation, P.W.27 filed the charge-sheet. 7. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 27 and marked Exs.P.1 to P.40 and M.Os.1 to 55. On the other hand, no witness was examined but Exs.D.1 to D8 were marked on behalf of the defence. 8. The plea of the accused is one of total denial. 7. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 27 and marked Exs.P.1 to P.40 and M.Os.1 to 55. On the other hand, no witness was examined but Exs.D.1 to D8 were marked on behalf of the defence. 8. The plea of the accused is one of total denial. On the basis of the identification of accused by P.Ws.1 and 2 during the course of Test Identification Parade, the learned Additional Metropolitan Sessions Judge while extending benefit of doubt, acquitted A.3 to A.5 of the offence punishable under Section 395 IPC and Al of the offence punishable under Section 25(1)(B)(b) of the Indian Arms Act. Hence, these appeals. 9. The learned Senior Counsel Sri Padmanabha Reddy, appearing on behalf of the appellants, vehemently contended that the entire case of the prosecution is false and absolutely there is no jurisdiction to the trial Court to come to the conclusion that accused are guilty of the offence punishable under Section 392 IPC. He also contends that the Test Identification Parade conducted on 24.6.1995 lost its significance because of undue delay in conducting the Test Identification Parade, and as accused were arrested on 11.6.1995 and P.W.1 came to Hyderabad on 21.6.1995 and only on the basis of the photographs that were shown by the police to P.W.1, he stated in the Test Identification Parade conducted on 24.6.1995 that accused are the persons who intercepted his vehicle on 31.10.1993 and snatched away the suitcase containing gold ornaments, the said identification proceedings cannot be taken into consideration. 10. Opposing the said contentions, the learned Additional Public Prosecutor contended that there is no gap between the date of arrest and the Test Identification Parade and the Test Identification Parade was conducted within fifteen days of the date of arrest and as such the trial Court is justified in accepting the identification proceedings. According to the learned Additional Public Prosecutor, if there is a long gap between the date of arrest and the date of the Test Identification Parade, then only the Identification Parade looses its significance, but not otherwise. It is his further contention that accused are not habitual offenders and there were no cases against them prior to the incident in question and hence it shall be believed that the prosecution has come up with true version. 11. It is his further contention that accused are not habitual offenders and there were no cases against them prior to the incident in question and hence it shall be believed that the prosecution has come up with true version. 11. Having considered the said rival contentions and also the evidence let in by the prosecution, it is clear that the entire case of the prosecution rests on the evidence of PWs.1 and 2 and the, Test Identification Parade conducted on 24.6.1995. The incident proper cannot be disputed. Evidently, on 31.1 0.1993 the suitcase of P.W.1 in which huge quantity of gold and gold ornaments were kept was snatched away by two individuals and the same were recovered at a later stage. Accused were arrested on 11.6.1995 and the Test Identification Parade was conducted on 24.6.1995 and P.Ws.1 and 2 identified those two persons. 12. In the light of the contention of the learned Counsel for the accused, the point that arises for consideration in these appeals is, whether the Test Identification Parade conducted on 24.6.1995 for the identification of the accused is proper or not? 13. Admittedly, there are no cases pending against accused, prior to the incident in question. Therefore, I find force in the submission made by the learned Additional Public Prosecutor that accused are not habitual offenders and hence, there is no reason for the prosecution to foist a false case against them. If the said submission is accepted in toto, no doubt, the case of the prosecution has to be accepted. But, in my considered view, that alone is not sufficient and the prosecution shall establish the guilt of the accused in all aspects. 14. In criminal cases, particularly, in cases of theft/robbery/dacoity Test Identification Parade is a must, when the culprits/assailants are not immediately arrested. When the complainant gives a report about the alleged theft/robbery/dacoity, it is incumbent on the part of the Investigating Officer to note down the physical features of the said culprits/assailants. Even if the complainant fails to give the physical features of the culprits/assailants, the Investigating Officer is under an obligation to question and note down the said physical features, which may be of any help at a later stage. It is not as though in this type of cases the accused will be arrested immediately and the Test Identification Parade will be conducted thereafter. It is not as though in this type of cases the accused will be arrested immediately and the Test Identification Parade will be conducted thereafter. When there is an abnonnal delay in arresting the accused in cases like the one on hand, the said descriptive particulars will help the case of the prosecution. 15. Further, for establishing the identity of the assailants, Test Identification Parade plays a vital role in cases of this nature. The necessity for holding an Identification Parade can arise only when the accused 1 are not previously known to the witnesses. The whole idea of Test Identification Parade r is that witnesses who claim to have seen the culprits at the time of occurrence are I to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. I In other words, the main object of holding an Identification Parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. The identification proceedings are in the nature of tests and it is desirable that a Test Identification Parade should be conducted soon after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the Test Identification Parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If the purpose for which the Test Identification Parade is conducted is not achieved, Test Identification Parade looses its significance. That is the reason why the Courts time and again have taken the view that Test Identification Parades shall be conducted at the earliest i.e., immediately after the arrest, so that the witnesses can easily identify the culprits and there may not be any possibility of forgetting them and there may not be any possibility of the accused being shown to the witnesses prior to the Test Identification Parade. 16. 16. Of course, it is the submission of the learned Additional Public Prosecutor that the whereabouts of the accused were not known and immediately after arrest that was on 11.6.1995, the police informed P.W.1 and P.W.1 came to Hyderabad on 21.6.1995 and the Test Identification Parade was conducted on 24.6.1995. According to him, as the Test Identification Parade was conducted within a period of thirteen days from the date of arrest, it shall be accepted. I am not in agreement with the said submission for the reasons stated supra. As stated earlier, it is only to enable the persons like P.W.1 to identify the assailants before they loose the memory, Test Identification Parade would be conducted. If a stranger is seen today, it is impossible for anybody to remember his face after a period of six months unless he is a known a person. These aspects were dealt with by this Court as well as the Apex Court in umpteen cases and have taken the view that if a Test Identification Parade is conducted after two or three months, it is not safe to base conviction of the accused persons on the basis of the such Test Identification Parade. 17. Keeping these principles in mind, when the facts in the case on hand are looked at, admittedly, nights are long and the days are short in winter and the alleged incident, as spoken to by the prosecution witnesses, happened on 31.10.1993 at 6.00 a.m. It is the case of P.W.1 that he left the hotel at 6.00 a.m., and at the time when the incident had taken place, it was 6.30 a.m. No doubt, there will be some light at 6.30 a.m., but it also came in the evidence that there was dark at the relevant point of time. When such is the situation, and when the accused are not known to PW.1 and they are totally strangers and the entire incident took place for about five minutes only, and at that time particularly when there was fog, is it possible to PW.1 to clearly see the assailants and remember them even after twenty months of the incident? In fact, according to P.W.1, on one of the assailants, there is a scar on the face, but the said factual aspect was not informed to the police officials at the time when he reported the matter. In fact, according to P.W.1, on one of the assailants, there is a scar on the face, but the said factual aspect was not informed to the police officials at the time when he reported the matter. No doubt, in unequivocal terms he deposed in the Court that during the Test Identification Parade conducted on 24.6.1995 he identified the accused as the assailants, but the said evidence does not inspire confidence. When once he came to Hyderabad on 21.6.1995 and he stayed for about three days at Hyderabad before the Test Identification Parade is conducted, there is every possibility of the police showing the photographs of the assailants to P.W.1 and solely on the basis of the same P.W.1 must have identified the accused as assailants on 31.10.1993. Though it is not possible to remember the entire physical features of the assailants, it is not an impossibility to remember the built of the assailants and the scars on the faces, which are prominent. But it is curious to note that P.W.1 has not stated anything about the physical features and the scars on the faces of the assailants in the report. It is only for the first time during the course of Test Identification Parade he has stated that he could identify the first accused because of the scar on his face. Thus, the evidence of P.W.1 appears to be improper for the reasons stated supra. Hence, this Court is not inclined to hold that the Test Identification Parade alone is sufficient to bring home the guilt of the accused. 18. Another important aspect, which lost sight of, is as to how P.W.2-the auto driver, is brought into the picture. It is true that P.W.1 clearly stated that he engaged the auto of P.W.2 and while he was traveling in the said auto, the said incident has taken place. However, because of the mechanical problem he left the said auto, got into another auto and came to the Police Station at Ramgopal Peta. It is not as if P.W.1 came to the police station in the very same auto. P.W.1 has not stated anything about the said auto in which he left. It is not the case of the prosecution that after sometime P.W.2 came to the police station and informed about the said incident that has taken place on 31.1 0.1993. It is not as if P.W.1 came to the police station in the very same auto. P.W.1 has not stated anything about the said auto in which he left. It is not the case of the prosecution that after sometime P.W.2 came to the police station and informed about the said incident that has taken place on 31.1 0.1993. In fact, P.W.1 in his cross-examination has clearly stated that he has not obtained the address of the auto driver before engaging another auto and going to Ramgopal peta Police Station. It is also stated by him that after the incident on 31.1 0.1993 he never met P.W.2 at any time. When the evidence of P.W.2 is perused, he has stated that six days after the incident that was probably on 6.11.1993, police sent for him and accordingly he went to Central Crime Station. When P.W.1 has not stated any particulars of P.W.2, how did the police come to know about P.W.2 is a million dollar question. When P.W.1 did not say anything about P.W.2 and when P.W.2 also did not inform to the police about the incident, it is impossible for the police to know about P.W.2. Curiously the police sent for P.W.2 and he accordingly went to the police station. 19. Further, P.W.20 in his chief examination has stated that he took up investigation and examined P.Ws.2, 6, 7, etc. But he did not state as to how he came to know about P.W.2 and that P.W.1 travelled in the auto of P.W.2 from Mayuri Hotel on 31.1 0.1993. It also came in the evidence of P.W.21 that P.W.1 has not mentioned the name of the auto driver in Ex.P1 and he has not stated about the name of the auto driver in which he was travelling at the time of incident. 20. From the above it is clear that the prosecution has planted P.W.2 as though he was the driver of the auto in which P.W.1 travelled on 31.10.1993. Of course, P.W.2 also stated that in the Test Identification Parade conducted on 24.6.1995, he identified the assailants as accused Nos.l and 2. When once knowledge about P.W.2 to the police itself is doubtful, it shall be held that P.W.2 is planted only for the purpose of this case, and therefore, it is not safe to rely the on his identification of the accused also. 21. When once knowledge about P.W.2 to the police itself is doubtful, it shall be held that P.W.2 is planted only for the purpose of this case, and therefore, it is not safe to rely the on his identification of the accused also. 21. In view of the above, it is clear that the prosecution has not established that the accused were the assailants who alleged to have snatched gold and jewellery from P.W.1 on 31.10.1993. Hence, the appellants are entitled to acquittal. 22. Accordingly, Criminal Appeal No.826 of 2000 is allowed and the conviction and sentence imposed on the appellants/A.1 and A2 for the offence punishable under Section 392 IPC by the learned II Additional Metropolitan Sessions Judge, Hyderabad, in Sessions Case No.551 of 1995, by judgment dated 29.6.2000 are hereby set aside. Consequently, Criminal Appeal No.96 of 2005 is dismissed. The bail bonds of the accused shall stand cancelled, and the fine amount, if any paid, by them shall be returned to them.