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Andhra High Court · body

2007 DIGILAW 758 (AP)

MOHD. IQBAL v. STATE OF A. P.

2007-08-09

C.Y.SOMAYAJULU

body2007
( 1 ) APPELLANT andthree other were tried forthe offences under Sections 395 IPC and Section 5 of the Indian Arms Act and were convicted by the trial Court after trial for the said offences and were sentenced to rigorous imprisonment for five years and fine of Rs. 200/- each, in default to suffer rigorous imprisonment for a further period of two months each for the offence under Section 395 IPC and two years rigorous imprisonment and fine of Rs. 100/-,in default to suffer rigorous imprisonment for one month each for the offence under Section 25 of the Indian Arms Act. ( 2 ) THE case of the prosecution is that on 24-08-1998 when P. Ws. 1 to 4, 6 and 8 were proceeding in a bus bearing No. AP10z 4170 with P. W. 1 as conductor and P. W. 2 as driver of the said b us, the appellant and others who got into the bus, pointed out a pistol to p. W. 2 and made him to stop the bus and robbed cash from P. W. 1 and other passengers and fired firearms and left the scene and so p. W. 1 gave Ex. P-1 report to the police, who visited the scene of offence and prepared ex. P-3 panchanama and Ex. P-4 sketch in presence of P. Ws. 5 and 7 and arrested the accused on 08-09-1998 in connection with some other crime and in pursuance of the confession in this crime, led the police to the place of concealment of M. Os. 1 to 7, which were recovered in the presence of P. W. 9. ( 3 ) THE appellant and the other accused who pleaded not guilty did not examine any witness on their behalf, but Ex. D-1 was marked during thecourse of cross-examination of P. W. 2. The trial Court believed the evidence of prosecution and convicted all the accused. Hence, this appeal by A-1. ( 4 ) THEPOINTTHATARISESFORCONSIDERATIONIS whether the prosecution brought home the guilt of the appellant beyond all reasonable doubt for the offences under Sections 3951 PC and Section 25 of the Indian Arms Act. The trial Court believed the evidence of prosecution and convicted all the accused. Hence, this appeal by A-1. ( 4 ) THEPOINTTHATARISESFORCONSIDERATIONIS whether the prosecution brought home the guilt of the appellant beyond all reasonable doubt for the offences under Sections 3951 PC and Section 25 of the Indian Arms Act. ( 5 ) THECONTENTION of the learned counsel for the appellant, who is appointed as State Brief, is that since the Magistrate who conducted the test identification parade is not examined and since the test identification parade proceedings were not brought on record and the since the investigating officer is also not examined, the trial court was in error in convicting the appellant. It is also his contention that the appellant had already undergone the imprisonment awarded by the trial Court and since there is nothing on record to show that permission from the District Magistrate is obtained to prosecute the appellant for the offence under Section 25 of the Indian Arms act, the appellant is entitled to be acquitted. ( 6 ) THE contention of the learned Additional public Prosecutor is that since the evidence of eyewitnesses shows the participation of the appellant and others in the crime and since they also identified the appellant during test identification parade, the trial Court rightly convicted the appellant for the offence under section 395 IPC. ( 7 ) AS rightly pointed out by the learned counsel forthe appellant, non-examination of the Magistrate and non-marking of the test identification parade proceedings is fatal to the prosecution case. It is no doubt true that p. Ws. 1 to 3, 6 and 8 clearly stated they identified the appellant during the test identification parade proceedings, held 22 days after the incident. Had the test identification parade proceedings been brought on record and had the Magistrate been examined, it would come to light when test identification parade was held and if they actually identified the appellant or not. Since the proceedings of test identification parade are not brought on record and since the Magistrate is also not examined, the appellant is entitled to the benefit of doubt. ( 8 ) I hold that the prosecution failed to bring home the guilt of the appellant beyond all reasonable doubt. ( 9 ) IN the result, the appeal is allowed. The appellant is acquitted of the offences charged against him. ( 8 ) I hold that the prosecution failed to bring home the guilt of the appellant beyond all reasonable doubt. ( 9 ) IN the result, the appeal is allowed. The appellant is acquitted of the offences charged against him. He shall be set at liberty forthwith, if not required in any other case. .