JUDGMENT (Per N.R.L.Nageswara Rao, J.) The third accused in Sessions Case No.337 of 2004, on the file of XI Additional District & Sessions Judge, (Fast Track Court), Guntur at Tenali, who was convicted of the offence punishable under Section 302of the Indian Penal Code, 1860 (for short, 'IPC'), and sentenced to undergolife imprisonment and to pay a fine of ` 2,000/-, in default to undergosimple imprisonment for a period of four months, is the appellant herein. 2. A case was originally filed against seven accused persons and the case against A-1 and A-2 was separated and thereafter, A-3 toA-7 were tried by the learned Sessions Judge. 3. According to the case of the prosecution, the deceased Karamsetty Srinivasa Rao was the owner of Kanaka Durga Jewellers shopat Tenali and a leading gold merchant. A-1 to A-5, according to the chargesheet, are gold workers by profession and previously worked under the deceased. Some misunderstandings arose between them due to the humiliation of the deceased. The accused were vexed with the behaviour of the deceased and decidedto do away with him. A-1 sought the help of his friend A-6 and all of them have conspired and planned to kill the deceased. In pursuance of their conspiracy, on the night of 05.07.2003, A-1 to A-4 stood at Azeezkhan Street, while A-6stood in the same bazaar and A-5 and A-7 followed the deceased, along with his clerks, after closing the shop and carrying the gold ornaments, were returning the house of the deceased. At about 10.45 p.m., when the deceased, along with his clerks, reached Tulsiram Chowk, all of a sudden A-1 to A-4 attacked him andA-4 pushed away P.Ws.4 and 5, who are the clerks of the deceased, and due to fear, they stood away. A-1 hacked the deceased with an axe on his face and head, while A-2 to A-4 stabbed him with knives due to which he fell down in a pool of blood. A-4 took away the bag containing the gold ornaments worth of ` 6 lakhs being carried by the deceased and all the accused escaped from the scene of offence and they left for Kollur to the house of A-6. Thereafter, A-5 and A-7 also joined them at the house of A-6. A-4 took away the bag containing the gold ornaments worth of ` 6 lakhs being carried by the deceased and all the accused escaped from the scene of offence and they left for Kollur to the house of A-6. Thereafter, A-5 and A-7 also joined them at the house of A-6. Thereafter, P.Ws.4 and 5 rushed to the spot and found the deceased fell down in pool of blood and immediately in formed about the incident to P.Ws.6 and 7, who are the brother and wife of the deceased, and they came to the scene of offence. Thereafter, the deceased was shifted to Government Hospital, Tenali, for treatment where P.W.14, who is the doctor, examined the injured and gave first aid. Then the injured was shifted from there to People's Trauma Hospital, Guntur, for better treatment.P.W.10, who is the doctor in People's Trauma Hospital, Guntur, gave treatment to the injured and while undergoing treatment, he died on 06.07.2003 at about8.00 a.m. 4. Initially, on Ex.P-2-Statement of P.W.4, a case in Crime No.61 of 2003 under Sections 307 and 397 IPC was registered by P.W.17,who is the Sub-Inspector of Police, and investigated into and subsequently, on receipt of Ex.P-4-death intimation, P.W.17 reregistered FIR altering Section of law to 302 and 397 IPC. 5. P.W.20, who is the Circle Inspector of Police, Tenali, took up the investigation. During the course of investigation, the statements of the witnesses were recorded; panchanama of the scene of offence was conducted and after the death of the deceased, P.w.20 also held inquest over the dead body of the deceased on 06.07.2003 from 1.00 p.m. to 3.00 p.m. and it was sent for post mortem examination; During the course of investigation.P.W.20 arrested A-5 on 01.08.2003 at Kaviraja Park, Nandula Pet, Tenali, in the presence of P.W.15-Mediator and another mediator under cover ofEx.P11-Mediators Report. In pursuance of the confession made by A-5, P.W.20arrested A-1 to A-6 on the same day at 5.00 p.m. at Kolluru in the house of A-6in the presence of P.W.15 and another mediator under cover of Ex.P-12-MediatorsReport. In pursuance of the confession made by A-5, P.W.20arrested A-1 to A-6 on the same day at 5.00 p.m. at Kolluru in the house of A-6in the presence of P.W.15 and another mediator under cover of Ex.P-12-MediatorsReport. P.W.20 seized item Nos.1 to 61 which are the stolen properties were recovered i.e., item Nos.1 to 20 were seized from the possession of A-1; ItemNos.21 to 30 were seized from the possession of A-2; item Nos.31 to 40 were seized from the possession of A-3; item Nos.41 to 49 were seized from the possession of A-4; and Item Nos.50 to 61 which are worth Rs. 5 lakhs were seized from the possession of A-6. Thereafter, the accused were sent for remand. 6. During the course of investigation, on 04.08.2003, the identification of the articles were conducted in which P.W.4 identified as the property belonging to his father. On 16.08.2003, on the requisition of the police, the Judicial Magistrate of the First Class, Tenali, P.W.13, conducted Test Identification Proceedings of A-1 to A-4 and P.Ws.4 and 5 have participated and identified the accused. Thereafter, on completion of the investigation, charge sheet was filed against A-1 to A-7 for an offence punishable under Sections 148, 302, 396 read with 149 and 412 IPC. The accused were committed to the Court of Sessions and thereafter, as some of the accused did not appear, the learned Sessions Judge proceeded with the trial of the case against A-3 to A-7. 7. Originally, the following charges were framed against the accused: "Firstly, That, A1 to A7, on and before one month 5.7.2003 at the house of A6 of you at Kolluru agreed among yourselves to commit the murder of the deceased Karamsetti Srinivasarao S/o Rangarao and in pursuance of said agreement you A1 to A4 did commit the murder of the deceased Karamsetti Srinivasarao S/o Rangarao on 5.7.2003 at 10.45 p.m. near Tulasiram Chowk at Tenali which is punishable for the death or imprisonment for life and there by committed an offence punishable u/s 120 B IPC and within my cognizance. Secondly, That A1 to A4 of you on 5.7.2003at 10.45 p.m. on the road near Tulasiram Chowk committed the murder by intentionally causing the death of Karamsetti Srinivasaro S/o Rangarao and there by committed an offence punishable u/s 302 IPC and within my cognizance. Secondly, That A1 to A4 of you on 5.7.2003at 10.45 p.m. on the road near Tulasiram Chowk committed the murder by intentionally causing the death of Karamsetti Srinivasaro S/o Rangarao and there by committed an offence punishable u/s 302 IPC and within my cognizance. Thirdly, That, you A1 to A7 on 5.7.2003 at about 10.45 p.m. on the road near Tulasiram Chowk, Shara Bazzar, Tenali were a member of unlawful assembly and did in prosecution of the common object of that assembly viz., committing the murder of the deceased Karamsetti Srinivasarao S/o Rangarao committed offence of roit and at that time you were armed with a deadly weapons and you A1 to A7 there by committed an offence punishable u/s 148 IPC and within my cognizance." When the above charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried. 8. On behalf of the prosecution, P.Ws.1 to 20 were examined and Exs.P-1 to P30, case properties M.Os.1 to 69 and contrary statements Exs.D-1 to D-7 were marked. 9. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and they did not adduce any defence evidence. 10. After considering the evidence on record, the learned Sessions Judge found that A-4 to A-7 are entitled for an acquittal and found that the prosecution case against A-3 was established from the evidence of P.Ws.4 and 5 and accordingly, convicted him for an offence punishable under Section 302 IPC. Aggrieved by the said judgment, the present Criminal Appeal is filed. 11. Heard Smt. A. Gayathri Reddy, learned counsel appearing for the accused and the learned Public Prosecutor representing the State. 12. The points that arise for consideration are: (1) Whether the prosecution has proved that the accused has committed the murder of the deceased- (2) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable- 13. POINT: In support of the prosecution case, the evidence of P.W.1, who is a resident of Ram Mandiram Street, Salipet, Tenali, nearer to the house of the deceased and is said to have the knowledge about the offence is not in support of the prosecution case and was declared as hostile. He claims to have gone to the scene only after hearing the cries. He claims to have gone to the scene only after hearing the cries. The evidence of P.W.2 is that he is a resident of Tulasiram Chowk and the scene of offence is nearer to his house. On the date of incident, at about 10.00 p.m. or 11.00p.m., he heard the cries and noticed the murder. According to him, on his enquiry, the clerks of the deceased told him that some people stabbed the deceased and snatched away the gold ornaments from him. Thereafter, P.Ws.4 and5, clerks of the deceased, brought P.Ws.6 and 7, who are the brother and wife of the deceased, and the deceased was shifted to the Government Hospital, Tenali. The evidence of P.W.3 is that he knows the deceased. The deceased was doing gold business and the deceased was murdered. According to him, at about 2 years ago, the deceased was killed at about 10.30 p.m. or 11.00 p.m. On hearing the cries and shouting from the street, he opened the doors of the house and came out side. He found four persons running away from the place of incident towards Azimline. By the time he reached the scene of offence, the deceased fell down in a pool of blood and he also found two persons who told him that they were the clerks of the deceased. They informed that four unknown persons stabbed the deceased and escaped from the scene of offence. P.Ws.6 and 7,brother and wife of the deceased, came to the scene of offence and the deceased was taken to the Government Hospital, Tenali. The evidence of P.Ws.4 and 5 is that they are the employees of the deceased and on the date of the incident, they were returning along with the deceased and when they reached Tulasiram Chowk, three persons caught hold of the deceased and he was attacked and snatched away the gold ornaments. 14. According to the evidence of P.W.4, thoughinitially stated that there are four persons, he stated that three persons caught hold of the shirt of the deceased and hacked the deceased with knives indiscriminately. According to him, there was a streetlight burning at the time of the incident. Due to the fear of the assailants who attacked the deceased, they could not interfere. According to him, there was a streetlight burning at the time of the incident. Due to the fear of the assailants who attacked the deceased, they could not interfere. He also identified the properties belonging to the deceased which were lost and further stated that on 16.08.2003, he participated in the Test Identification Parade and identified three persons and Accused No.3is one. During the course of cross-examination, it was elicited that four accused were shown to him prior to the Test Identification parade. The evidence of P.W.5 is also in support of the evidence of P.W.4 and in the chief examination itself, he stated that A-3 is one of the assailants who participated in the occurrence of the offence. He also claims to have identified the accused in the Test Identification Parade conducted by the learned Magistrate. According to him, the police served summons to him directly and after receipt of the summons, he proceeded to the Sub-Jail and he denied that the photos of the suspects were shown to him earlier. 15. The evidence of P.W.6, who is the brother of the deceased, is that the deceased was his elder brother and he came to know about the incident and went to the scene and thereafter, the deceased was taken to the Government Hospital at Tenali and further, he was shifted to the People's Trauma Hospital at Guntur for better treatment, for better treatment and while undertaking treatment, the deceased died on 06.07.2003 at 8.00 a.m. The evidence of P.W.7, who is the wife of the deceased, is also about the attack on the deceased and gone to the scene of offence after the information given byP.Ws.4 and 5. 16. P.W.8, who is a gold smith and knows the deceased, deposed that the deceased was a gold merchant and he was victimizing the employees and he came to know about the death of the deceased on 06.07.2003. According to him, he did not support the prosecution case about the accused giving information and only supported to the extent of A-5 meeting him and informing him that he has given some weapons toA-2 to kill the deceased. He excluded the information with regard to the other accused. 17. According to him, he did not support the prosecution case about the accused giving information and only supported to the extent of A-5 meeting him and informing him that he has given some weapons toA-2 to kill the deceased. He excluded the information with regard to the other accused. 17. The evidence of P.W.9, who is the Assistant Professor, Department of Forensic Medicine, Guntur Medical College, Guntur, is about conducting of the Post Mortem Examination on the dead body of the deceased and noticing the injuries mentioned in Ex.P-3 - Post Mortem Certificate and opining that the death was due to multiple injuries. 18. The evidence of P.W.10, who is the Medical Officer in People's Trauma Hospital, Guntur, is about sending Ex.P-4-death intimation to the Kothapet Police, Guntur. The evidence of P.W.11, who is the Mediator, is about the presence at the time of panchanama of the scene. The evidence ofP.W.12, who is the Panchayatdaar, is about the presence at the time of in quest held over the dead body of the deceased. 19. The evidence of P.W.13, who is the II Additional Munsif Magistrate, Tenali, is about conducting of the Test Identification Parade where P.Ws.4 and 5 identified A-1 to A-3. The evidence of P.W.14 is about conducting Post Mortem Examination on the dead body of the deceased.P.W.14 is the doctor who treated the deceased when he was admitted in the Government Hospital at Tenali. P.W.15, who acted as a Mediator, is the punch witness who spoke about the apprehension of A-6 and in pursuance of the confession, arresting the other accused. According to him, in his presence, A-3confessed and produced M.Os.31 to 40 which were seized by the police. He alsos poke about the confession given by the other accused and also seized all the properties. The evidence of P.W.16, who is the Head Constable, Kothapet, is about receiving of Ex.P-4-death intimation and sending the same to the policeat Tenali. The evidence of P.Ws.17 and 18, Sub-Inspector of Police and Head Constable of Tenali I Town Police, is about the investigation done by them in this case. 20. The evidence of P.W.19, who is the Consultant Neuro Surgeon, People's Trauma Hospital, Kothapet, Guntur, is about the treatment given to the deceased at the hospital and noticing the injuries mentioned inExs.P-15 and P-16-Case Sheet and CT Scan Report. 20. The evidence of P.W.19, who is the Consultant Neuro Surgeon, People's Trauma Hospital, Kothapet, Guntur, is about the treatment given to the deceased at the hospital and noticing the injuries mentioned inExs.P-15 and P-16-Case Sheet and CT Scan Report. The injured is said to have been expired on 06.07.2003 at 7.45 a.m. 21. The evidence P.W.20 is about the investigation done by the Inspector of Police who is the Sub-Divisional Police Officer and thereafter arresting the accused and seizing of the properties. 22. The learned Sessions Judge did not believe the prosecution case against A-4 to A-7 and also did not give the recovery of the properties from them and acquitted the accused. So far as the evidence against the appellant herein is concerned, the learned Sessions Judge found that P.Ws.4and 5, who are the employees of the deceased, followed the deceased at the time of the incident and they have identified Accused No.3/appellant herein in the Court and also before the Magistrate-P.W.13 who conducted the Test Identification Parade and, therefore, the complicity of A-3 has been established. 23. The learned counsel for the appellant strongly contends that the accused are known to P.Ws.4 and 5 even earlier to the incident and the investigation done by the police and the contents in the charge sheet clearly discloses that all of them worked with the deceased and, therefore, the question of Test Identification Parade does not arise. Further, it is her contention that if at all the accused have participated in the offence, the known persons could have been duly identified by P.Ws.4 and 5. She also contends that the evidence of P.W.4 is not reliable about saying the involvement of A-3 since in the earlier part of the deposition in chief examination, though P.W.4 stated that three persons attacked the deceased, he did not point his finger to Accused No.3, but only while referring to the identification proceedings conducted by P.W.13-Magistrate, he stated that A-3is the person who attacked the deceased. Therefore, according to her, such evidence cannot be given credence. Further more, according to her, the evidence of P.W.4 discloses that he has seen the accused and the particulars of the overt acts are also not given by him. Further, she contends that the accused were shown to the witnesses even earlier and as such, the Test Identification Parade cannot be taken into consideration. Further more, according to her, the evidence of P.W.4 discloses that he has seen the accused and the particulars of the overt acts are also not given by him. Further, she contends that the accused were shown to the witnesses even earlier and as such, the Test Identification Parade cannot be taken into consideration. So also, she contends that the Test Identification Parade was not properly conducted by P.W.13 since he has not disclosed the particulars of the suspects and non-suspects who are mixed together and the standing of the suspects and non-suspects in his report, he has also not asked the suspects as to whether they intend to change their place of standing and, therefore, in view of the said circumstances, the Test Identification Parade looses its importance. As rightly contended by the learned counsel for the appellant herein whether it is intentional or otherwise, the charge sheet clearly goes to show that the accused are the employees of the deceased. The fact that the accused are gold smiths and live by that profession is also not in dispute by the prosecution. Therefore, when all of them are residents of the same village and they live by the same profession, the possibility of accused being known to P.Ws.4 and 5 earlier cannot be ruled out. Therefore, in view of the above circumstances, we are of the opinion that basing on the evidence of P.Ws.4 and 5, keeping in view the allegations in the charge sheet before the Court, no conviction can be based and the accused will be entitled to a reasonable benefit of doubt. 24. However, the fact remains that A-3 has been arrested on 01.08.2003 and from his possession, part of the stolen property has been recovered. Even according to the case of the prosecution, the properties were given by A-6 after they have been taken away to his house by A-4.Therefore, from the scene of offence, A-3 has not snatched away any gold ornaments from the possession of the deceased. The fact can only be that after the death of the deceased, the property was stolen and the accused came into possession of the stolen property for which there is absolutely no explanation. The fact that the property in his possession is stolen property need not be doubted. The fact can only be that after the death of the deceased, the property was stolen and the accused came into possession of the stolen property for which there is absolutely no explanation. The fact that the property in his possession is stolen property need not be doubted. The learned Sessions Judge has not specifically given a finding about the seizure of the gold ornaments from the possession of the appellant. Though with regard to A-4 to A-7, he made a general reference that the recovery cannot be believed. Further more, the reason given by the learned Sessions Judge for not giving credence to the recovery for the reason that there are no signatures of the accused does not appear to be legal and acceptable. Therefore, the learned Sessions Judge should not have rejected the evidence of the prosecution so far as it relates to the recovery of the stolen property from the possession of the accused. The accused could not give any explanation and, therefore, the accused can be convicted for an offence punishable under Section 411 IPC. 25. In the result, the conviction and sentence recorded by the learned XI Additional District & Sessions Judge (Fast Track Court), Guntur at Tenali, in Sessions Case No.337 of 2004, dated 04.07.2005, against the Appellant/Accused No.3 of the offence punishable under Section 302 of I.P.C. is set aside, instead the appellant/Accused No.3 is found guilty of the offence punishable under Section 411 I.P.C., and accordingly, he is convicted and sentenced to undergo Rigorous Imprisonment for a period of three (3) years. The period of remand underwent by the Appellant/Accused No.3 during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 6. Accordingly, the Criminal Appeal is partly allowed.