Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 557 (AP)

KAKATLA KESHAVA REDDY v. STATE OF A. P.

2007-06-14

C.Y.SOMAYAJULU

body2007
( 1 ) AGGRIEVED by the conviction for the offence under Section 395 of IPC and the sentence of rigorous imprisonment for ten years and fine of rs. 500/-, A. 5 in Crime No. 68 of 2004 of ghanpur Police Station of Warangal District, the sole accused in S. C. No. 546 of 2006 on the file of Court of II Additional Assistant sessions Judge, Warangal preferred this appeal. ( 2 ) THE case of the prosecution is that the appellant along with others committed dacoity in the house of P. W. 1 during the intervening night of 27/28-8-2004. In support of its case, the prosecution examined eight witnesses and marked Ex. P. 1 to P. 8 and M. Os. 1 to 4. ( 3 ) THE case of the prosecution, as revealed from the evidence adduced, is p. W. 2 is the wife of P. W. 1. P. W. 3 is the friend of P. W. 1. During the intervening night of 27/28-8-2004, when P. W. 1 and P. W. 2 with their children were sleeping in their house, four people armed with sticks entered into their house by breaking open the doors, woke them up after surrounding P. Ws. 1 and 2 and threatened them to handover the cash and valuables available with them and when P. Ws. 1 and 2 stated that they do not have any cash or valuables with them, those persons opened the almirah, and took away one gold chain weighing about 11/2 tulas, another gold chain weighing about 1/2 tula therefrom and snatched the pusthelathadu, gold ring and ear studs belonging to P. W. 2 and took away their TV while leaving the house of PWs. 1 and 2. So P. W. 1 gave Ex. P1 report to P. W. 7 who registered it as Crime No. 68 of 2004 under section 392 IPC, issued Ex. P8 - FIR and informed P. W. 8 about the offence, P. W. 8 took up investigation, proceeded to the scene of offence, prepared Ex. P4 panchanama of the scene of offence, in the presence of P. W. 5 and arrested the appellant on 3-12-2004 at about 3. 00 p. m. at Gandhinagar x road near bus stop on suspicion and interrogated him in the presence of P. W. 4 and another, and recovered M. Os. P4 panchanama of the scene of offence, in the presence of P. W. 5 and arrested the appellant on 3-12-2004 at about 3. 00 p. m. at Gandhinagar x road near bus stop on suspicion and interrogated him in the presence of P. W. 4 and another, and recovered M. Os. 2 to 4 from him and M. O. I from his house under exs. P2 and P3 - confession and recovery panchanamas, and sent him to judicial remand. After receipt of a requisition for holding a Test Identification Parade, P. W. 6 conducted Test Identification Parade under Ex. P. 7 proceedings. After completion of investigation, P. W. 8 filed the charge-sheet. As stated earlier, the trial Court believed the case of the prosecution and convicted and sentenced the appellant as mentioned above. ( 4 ) THE point for determination is whether the evidence on record establishes the offence under Section 395 IPC against the appellant. ( 5 ) THE contention of Shri E. Venkat reddy, learned Counsel for the appellant is that since the evidence of P. Ws. 1 and 2 shows that only four people entered the house, and that the appellant was present in the police station when they were called there to identify M. Os. 1 to 4 on 3-12-2004 and since there is no evidence on record to show that five persons participated in the offence alleged, the trial Court was in error in convicting the appellant for an offence under Section 395 IPC and in any event since the evidence of P. Ws. 1 and 2 clearly shows that they have seen the appellant in the police station on 3-12-2004, and as the Test Identification Parade was held by P. W. 6 on 18-12-2004, identification of the appellant by P. Ws. 1 and 2 during the test Identification Parade cannot form the basis for convicting the appellant, and since no test identification of M. Os. 1 to 4 was conducted by PWs. 1 and 2, their alleged identification in the police station cannot be believed or accepted. So the appellant is entitled to be acquitted. ( 6 ) HEARD the learned Public Prosecutor. ( 7 ) THE evidence of P. Ws. 1 and 2 is that only four persons entered into their house. They did not speak about the involvement of any other person in the offence. So the appellant is entitled to be acquitted. ( 6 ) HEARD the learned Public Prosecutor. ( 7 ) THE evidence of P. Ws. 1 and 2 is that only four persons entered into their house. They did not speak about the involvement of any other person in the offence. It is not their evidence that they had previous acquaintance with the four persons that entered their house or that they knew any of them earlier. They did not give the description or identification particulars of any of the four persons that entered into their house. They stated that when they were called to the police station, for identifying their articles, which were stolen by the four persons that entered their house, the appellant was in the police station. So it is clear that recovery of m. Os. 1 to 4 which were seized under exs. P2 and P. 3 - confession and recovery panchanamas, is earlier to P. Ws. 1 and 2 being called for identification of their stolen articles. Why no panchanama of identification of M. Os. 1 to 4 by P. Ws. 1 and 2 in the police station was conducted is not explained by the Investigating Officer. So identification of M. Os. 1 to 4 in the police station by PWs. 1 and 2 is doubtful. ( 8 ) APPELLANT admittedly was in the police station by the time PWs. 1 and 2 were allegedly called to the police station to identify M. Os. 1 to 4. Exs. P. 2 and P. 3, under which M. Os. 1 to 4 were recovered on 3-12-2004. The Test Identification Parade of the appellant where he was identified was held on 18-12-2004. Since the appellant was seen by P. Ws. 1 and 2 in the police station prior to the Test Identification parade merely because they identified the appellant in the Test Identification Parade, it cannot be said that the appellant was one among the four that entered into their house on the day of the incident. ( 9 ) PW. 4 - pancha at the time of exs. P2 and P3, during cross-examination admitted that P. W. 1 is his friend, and that a constable conducted the panchanama, so it is not safe to rely upon the evidence of P. W. 4. ( 9 ) PW. 4 - pancha at the time of exs. P2 and P3, during cross-examination admitted that P. W. 1 is his friend, and that a constable conducted the panchanama, so it is not safe to rely upon the evidence of P. W. 4. ( 10 ) THUS, there is no reliable evidence on record to show that appellant was among the persons that entered into the house of p. Ws. 1 and 2 or to hold that M. Os. 1 to 4 were in fact recovered by the possession of the appellant and so I hold that the prosecution failed to bring home the guilt of the appellant beyond all reasonable doubt for the offence under Section 395 IPC. The point is answered accordingly. ( 11 ) IN view of my finding on the point for consideration, the appeal is allowed and the appellant is acquitted of the offence charged against him. He shall be set at liberty forthwith, if he is not required in any other case. .